IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN WEDNESDAY, THE 15TH JUNE 2011 / 25TH JYAISHTA 1933 CRL.A.No. 209 of 2003() ----------------------- CC.25/2000 of ENQUIRY COMMR. & SPL. JUDGE, THRISSUR .............................. APPELLANT/1ST ACCUSED: -------------------------- P.N. VASU, FORMER 1ST GRADE OVERSEAR, BLOCK DEVELOPMENT OFFICE, ELAMDESOM. BY ADV. SRI.P.VIJAYA BHANU, SENIOR ADVOCATE SRI.DINESH R.SHENOY SRI.T.N.MANOJ RESPONDENT/ COMPLAINANT: --------------------------- STATE OF KERALA, REPRESENTED BY THE DY.SUPERINTENDENT OF POLICE, VACB, IDUKKI, THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA. PUBLIC PROSECUTOR, B.VINOD THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30/05/2011, ALONG WITH CRA NO. 210 OF 2003 THE COURT ON 15/6/2011 DELIVERED THE FOLLOWING: P.S.GOPINATHAN, J. ----------------------------- Crl.A.No.209 & 210 OF 2003 ------------------------------- Dated this the 15th day of June, 2011 C O M M O N J U D G M E N T ~~~~~~~~~~~ The appellants are accused 1 & 2 in C.C.No.25/2000 on the file of the Enquiry Commissioner and Special Judge, Thrissur. They along with the 4th accused were found guilty by the learned Special Judge for offence under Section 120B and 409 IPC and Section 13(2) read with 13(1)(c) of the Prevention of Corruption Act, 1988 (herein after referred to as 'PC Act'). Each of them were sentenced to rigorous imprisonment for four years and a fine of Rs.50,000/- under Section 13(2) read with 13(1)(c) with a default sentence of rigorous imprisonment for one and a half years. For offences under Section 409 & 120B IPC, they were sentenced to rigorous imprisonment for two years on each count. Assailing the above conviction and sentence, these appeals were filed. 4th accused filed Crl.A.No.208/2003. It was reported that the 4th accused expired and no legal heirs were coming forward to implead and to prosecute the appeal. In the above circumstance, Crl.A.No.208/2003 was dismissed as abated. Crl.A.No.209 & 210/2003 2 2. PW7, the Deputy Superintendent of Police, Vigilance and Anti Corruption Bureau, Idukki in Crime No.BC 2/98 filed a final report against the appellants herein and two others. At the time when the final report was filed, the 3rd accused expired. It was alleged that the appellants, hereinafter referred to as the accused 1 and 2, were 1st Grade Overseer/Draftsman and Assistant Engineer respectively in Block Development Office, Elamdesom in Idukki District. Late 3rd accused was the Assistant Executive Engineer. Under the Employment Assurance Scheme, fund was allotted to Elamdesom Block Development Office for the construction of Njaralampuzha-Modiyani Colony Road in Kudayathoor Panchayat. The work under the Employment Assurance Scheme (EAS) is to be executed with unskilled labourers. The 4th accused was elected as a nominee of the beneficiaries for the purpose of the construction of protection wall for the above road. Ext.P4(a) is the estimate prepared by the 2nd accused. According to the prosecution, during the course of the execution of the work, the accused 1 to 4 entered into a criminal conspiracy to carry out the work in such a way as to defeat the purpose and to obtain undue pecuniary advantage and Crl.A.No.209 & 210/2003 3 in pursuance to the conspiracy, they forged documents and using those forged documents as genuine, bills were prepared for which the 2nd accused recorded measurements in Ext.P3 'M' book and it was check measured by the 3rd accused and thereafter bill was passed and payment for a sum of Rs.47,790/- was effected through a cheque, the counterfoil of which was marked as Ext.P7, and that the cheque was encashed and that the accused 1 to 3 had committed breach of trust and criminal misconduct and that all the accused had undue pecuniary advantage. 3. On 5.11.1997, PW2, the Assistant Executive Engineer, PWD, Thodupuzha, along with the Panchayat Inspector, as requested by the Deputy Superintendent of Police, Vigilance and Anti Corruption Bureau inspected the said work for which Ext.P2 inventory was prepared. During the inspection, it was revealed that the work executed was substandard. There was variation in measurements. There were voids in RR masonry, rate difference in the materials used, the dowel bars were with lesser length and the workmanship was very poor. On the basis of Crl.A.No.209 & 210/2003 4 Ext.P2, the case was registered and the investigation was taken over by PW6. After completing the investigation, final report was filed against all the accused, of course stating that the 3rd accused was dead, alleging offences under Section 13(2) read with 13(1)(d) of the PC Act and Sections 409, 468, 477A and 120B IPC before the trial court. The learned Special Judge took cognizance and issued process, responding to which accused 1, 2 and 4 entered appearance. After furnishing the copy of the final report and connected documents, the prosecution and the accused were heard. Finding that there are materials to send the accused for trial for offence under Section 13(2) read with 13 (1)(c) and 13(1)(d); and under Sections 120B, 409, 468 and 477A IPC, a charge was framed for the said offences. The accused pleaded not guilty when the charge was read over and explained to them. Therefore, they were sent for trial. On the side of the prosecution, PWs1 to 7 were examined and Exts.P1 to P22 were marked. After closing the evidence for the prosecution, the accused were questioned under Section 313(1)(b) of the Code of Criminal Procedure. They denied the incriminating evidence. Though they were called upon to enter their defence, no defence Crl.A.No.209 & 210/2003 5 evidence was let in. The learned Special Judge, on appraisal of the evidence, arrived at a finding that the prosecution had succeeded only to establish offence under Section 13(2) read with 13(1)(c) of the PC Act and Section 120B and 409 IPC. Hence, the accused 1, 2 and 4 were convicted and sentenced as above. For offences under Section 13(2) read with 13(1)(d) and Sections 468 and 477A IPC, they were acquitted. 4. The fact that the accused 1 and 2 were working as 1st Grade Overseer and Assistant Engineer in Elamdesom Block Development Office is not at all disputed. PWs 3 and 4 had given evidence to that effect. Their evidence is not only not disputed but also admitted. The accused 1 and 2 had not at all denied their official status when questioned under Section 313(1)(b) of the Code of Criminal Procedure. In the above circumstance, I find that the learned Special Judge had correctly appraised the evidence on record and arrived at a conclusion that the accused 1 and 2, who are now appellants before me, were working as 1st Grade Overseer and Assistant Engineer respectively in Block Development Office, Elamdesom during 1996-97 and as such Crl.A.No.209 & 210/2003 6 they were public servants coming under Section 2(c) of the PC Act. 5. PW1, then Additional Chief Engineer, Public Works Department, had deposed that he was the authority competent to remove the accused 1 and 2 from the service and that he, after verifying the final report and the connected records, accorded sanction to prosecute the accused 1 and 2 and that Ext.P1 is the order issued by him for that purpose. The authority of PW1 to issue Ext.P1 order or the validity of Ext.P1 was not at all assailed by the appellants. In the above circumstance, I concur with the learned Special Judge and find that the appellants were prosecuted with due sanction. 6. PW2 had deposed that, as requested by the Deputy Superintendent of Police, Vigilance and Anti Corruption Bureau, he along with the Panchayat Inspector, on 5.11.1997, inspected the protection of wall constructed to Njaralampuzha-Modiyani Colony Road in Kudayathoor Panchayat and that Ext.P2 is the inventory prepared by him and that Ext.P3 is the 'M' Book and Crl.A.No.209 & 210/2003 7 that Ext.P4 is the file relating to the work and that Ext.P4(a) is the estimate and that the work was ordered to be executed for Rs.47,790/- and that the work executed was substandard, there were voids in the RR masonry, there was ratio difference in the materials used, dowel bars were with lesser length and the workmanship was very poor. Ext.P2 would corroborate with the evidence of PW2 except regarding the ratio difference of the materials used. 7. PW3 would depose that he was the Block Development Officer in Elamdesom Block since 3.5.1997 and that the accused 1 and 2 were working under him and that the protection wall in dispute was constructed during his tenure and that Ext.P6 is the file maintained in the office and that the estimate was prepared by the 2nd accused and that the 4th accused was elected as the Convenor for the work and that Ext.P6(c) is the minutes whereby the 4th accused was elected as the convenor of the work and that Ext.P6(d) is the request given by the 4th accused for extension of period for execution of the work and that the part bill was prepared by the 2nd accused and that Ext.P6(e) is the part bill, wherein the 2nd accused had Crl.A.No.209 & 210/2003 8 certified the work measurement and that the measurement was checked by the 3rd accused and that the bill was prepared for Rs. 57,648/- and that after deducting the recoveries, Rs.47,790/- was passed and that Ext.P3(a) is the certificate signed by the 2nd accused and that cheque bearing No.725532 dated 11.9.1997 for Rs.47,790/- was issued in favour of the 4th accused and that Ext.P7 is the counterfoil and that Ext.P8 treasury pass book would show that the said amount was withdrawn from the Treasury on 12.9.1997. 8. PW4 would depose that in 1997 he was the Head Clerk in DRDA, Idukki and that by the cash book maintained in the office, the cheque, the counterfoil of which is Ext.P7, was issued in favour of the 4th accused and that Ext.P10 is the photocopy of the cash book and that Ext.P11 is the relevant page of the cheque issue register and that Ext.P12 is the photocopy of the guidelines and that the accused 1 and 2 were the Overseer and the Assistant Engineer and that Ext.P3(a) was signed by the 2nd and 3rd accused. PWs 5, 6 and 7 are the investigating officers. Crl.A.No.209 & 210/2003 9 9. The fact that the protection wall was constructed for the Njaralampuzha-Modiyani Colony Road in Kudayathoor Panchayat under the Employment Assurance Scheme and that the 4th accused was the Convenor of the work was not disputed. Ext.P9 circular would show that accused 1 and 2, who were the Overseer and the Assistant Engineer, had to supervise the work. Their duty borne out by Ext.P9 was also not disputed. The evidence of PW2 coupled with Ext.P2 would show that the work was executed substandard, there were many voids in the RR masonry and dowel bars were with lesser length than as per estimate and on mild knocking the concrete fell down. As per Ext.P6(a) estimate, the ratio for the concrete work was 1:3:6 and the ratio for the cement masonry was 1:6. PW2 had taken samples and were forwarded to the forensic science laboratory, Thiruvananthapuram. Ext.P21 is the report. It would show that in the sample sent for analysis, the ratio of cement, sand and stone for concrete work was 1:5:7.6 instead of 1:3:6. The ratio of cement and sand for the cement mortar was 1:8.6 instead of 1:4. Ext.P21 would support the evidence of PW2 regarding the ratio difference. The learned counsel for the appellant heavily Crl.A.No.209 & 210/2003 10 assailed Ext.P21 with an argument that according to PW2 sample was taken in gunny bag, but in the laboratory it was obtained in paper bag and that there is no evidence regarding sealing of the sample or that the sample received in the laboratory is the one taken by PW2. Since Ext.P21 is regarding concrete and mortar, even if Ext.P21 is discarded, regarding the voids in RR masonry, shortage of iron rod and that concrete fell down on mild knocking the evidence of PW2 remains unimpeached. What PW2 had experienced at the site is noted in Ext.P2 and deposed in court. I find little reason to disbelieve PW2 on that aspect or to reject Ext.P2. Therefore, I concur with the trial court and find that the work done was substandard because there were so many voids in RR masonry, lesser quantity of iron rod and that concrete fell down on mild knocking and that the workmanship was poor. Ext.P6(g), the copy of the bill would show that the bill was passed as if the cement concrete was in the ratio 1:3:6 and the cement mortar was in the ratio 1:6 as against the actual ratio of 1:5:7.6 and 1:8.6 respectively. Crl.A.No.209 & 210/2003 11 10. The appellants being Overseer and Assistant Engineer, they had a duty to see that the work was executed with materials in the ratio as per the estimate. The learned counsel for the appellant submitted that the appellants had no machinery to see that the materials were used in the estimated ratio as it was impossible for them, who were having charge of a lot of work, to be at the spot through out the work and to see that the materials were used in the estimated ratio. I find no merit in the submission made by the learned counsel for the appellant. But it is pertinent to note that none of the witnesses has got a case that any of the materials were entrusted to the appellants and that they had committed breach of trust in respect of any of the materials so entrusted. Therefore, no offence under Section 13(2) read with 13(1)(c) or 409 IPC was established. So also, there is nothing on record to show that the appellants had anyway involved in any criminal conspiracy with the accused 3 and 4 in the execution of the work. It is evident by the evidence of PW3 and 4; and Ext.P7 that cheque was issued for the above mentioned amount in favour of the 4th accused and the appellants had no way got any pecuniary advantage. For the Crl.A.No.209 & 210/2003 12 reasons mentioned earlier, it had to be concluded that the work was executed by the 4th accused not in accordance with the ratio of the materials as per the estimate. Only lesser quantity of iron rods, rubble and cement were used for the execution of the work. There is supervisory laches on the side of the accused 1 and 2. Since only lesser quantity of cement, rubbles and iron rods were used by the 4th accused in the execution of the work, in fact, the 4th accused had got pecuniary advantage to the extent to which there is reduction in the quantity of the cement, rubbles and iron rod. As far as the work is concerned, since the work executed was substandard as opined by PW2 there is total loss. But the bill was prepared as if the materials were used asper estimate. In this view of the matter, there is creation of false document. The evidence available on record would show that there is abuse on the side of the accused 1 and 2, as a result of which, the 4th accused had pecuniary advantage. Therefore, in fact, offence under Section 13(2) read with 13(1)(d) of the PC Act was established. But the learned Special Judge had acquitted the appellants for the said offence. As against that order of acquittal, there is no appeal preferred by the prosecution. Crl.A.No.209 & 210/2003 13 Therefore, the acquittal for offence under Section 13(2) read with 13 (1)(d) had become final. The result is that there is no material on record to sustain a conviction for offence under Section 120B and 409 IPC or under Section 13(2) read with 13(1)(c) of the PC Act. But there is evidence to sustain a conviction under Section 13(2) read with 13(1)(d) of PC Act. Since offence under Section 13(2) read with 13(1)(c) of the PC Act and Section 13(2) read with 13(1)(d) of the PC Act are distinct offences, in an appeal against the conviction for offence under Section 13(2) read with 13(1)(c), it is not at all just and appropriate to reverse the order of acquittal for offence under Section 13(2) read with 13(1)(d) and to convict the appellants for the said offence in substitution for offence under Section 13(2) read with 13(1)(c) of the PC Act. Therefore, the appellants are entitled to an order of acquittal. In the result, for the reasons stated above, both the appeals are allowed. The conviction and sentence under challenge are set aside. The appellants would stand acquitted and set at liberty. The fine amount, if any, deposited shall be refunded. (P.S.GOPINATHAN, JUDGE) ps/6/6