IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR THURSDAY, THE 8TH OCTOBER 2009 / 16TH ASWINA 1931 CRL.A.No. 2208 of 2008() ------------------------ CC.53/2003 of ENQUIRY COMMR. & SPL. JUDGE, TRIVANDRUM .................... APPELLANT(S): A2: ----------------- SMT.THAJUNIZA, FORMERLY AGRICULTURAL OFFICER, KEEZHUVILAM. BY ADV. SRI.K.P.DANDAPANI, SENIOR ADVOCATE SRI.MILLU DANDAPANI RESPONDENT(S): COMPLAINANT: --------------------------- STATE OF KERALA, REPRESENTED BY THE DEPUTY S.P., VACB, THIRUVANANTHAPURAM UNIT. PUBLIC PROSECUTOR SRI.P.N. SUKUMARAN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 08/10/2009, ALONG WITH CRA NO. 2248 OF 2008 CRA NO. 2255 OF 2008 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * Crl.Appeal Nos. 2208, 2248 and 2255 of 2008 * * * * * * * * * * * * * * * * * * Dated, this the 8th day of October 2009 JUDGMENT Crl. Appeal Nos. 2255 , 2208 and 2248 of 2008 are filed by accused Nos. 1 to 3 respectively in C.C. No. 53 of 2003 on the file of the Court of Enquiry Commissioner and Special Judge (Vigilance), Thiruvananthapuram. 2. The charge against the appellants was as follows:- Smt. Ramla Beevi (A1) was formerly working as the Assistant Director of Agriculture, Attingal. Smt. Thajuniza (A2) was formerly working as Agriculture Officer, Keezhuvilam, Sri.K. Surendran (A3) was working as Assistant Executive Engineer, (Agriculture) Thiruvananthapuram. A1 to A3 who were public servants entered into a criminal conspiracy with A4 (S. Muraleedharan Nair, Secretary , Pammamkottukonam Group Farming Ela Samithi, Keezhuvilam in Chirayinkeezhu Taluk of Thiruvananthapuram (“Ela Samithi” for short) and now absconding. A4 was entrusted with the work of construction of a bund around Parayattukonam Chira at Keezhuvilam in Crl.Appeal Nos. 2208, 2255 and 2248 of 2008 -:2:- Chirayinkeezhu Taluk for a total amount of Rs. 8,57,000/- and in pursuance of the said conspiracy A1 to A3 during the period from 10-08-1993 to 28-5-1994 by corrupt or illegal means or otherwise abusing their position as such public servants facilitated A4 to obtain pecuniary advantage to the tune of Rs. 2,28,390/- by making false entries in the official records by A1 to A3 to the effect that 13.05.09 M3 of soil was brought from outside and used for construction of the bund whereas actually the soil used for the construction was the de-silted soil obtained from the chira site itself and thereby all the three accused persons committed offences under Section 13(1)(d) punishable under Sec. 13 (2) of the Prevention of Corruption Act, 1988 read with Sec. 120 B of I.P.C. 3. A1 to A3 alone stood trial before the Enquiry Commissioner and Special Judge. A4 who was the Secretary of the Ela Samithy continues to be absconding. 4. On the appellants pleading not guilty to the charge framed against them by the court below for the aforementioned offences, the prosecution was permitted to adduce evidence in support of its case. The prosecution altogether examined 17 Crl.Appeal Nos. 2208, 2255 and 2248 of 2008 -:3:- witnesses as P.Ws. 1 to 17 and got marked 25 documents as Exts.P1 to P25. 5. After the close of the prosecution evidence, the appellants were questioned under Sec. 313 (1)(b) Cr.P.C. with regard to the incriminating circumstances appearing against them in the evidence for the prosecution. They denied those circumstances and maintained their innocence. 6. The learned Special Judge, after trial, as per judgment dated 18-9-1008 found the appellants guilty of the offences and sentenced each of them to rigorous imprisonment for two years and to pay fine of Rs. 75,000/- and on default to undergo simple imprisonment for six months for the offence under Section 13 (1)(d) punishable under Sec. 13 (2) of the P.C. Act and to rigorous imprisonment for one year each for the offence punishable under Sec. 120 B I.P.C. The substantive sentences of imprisonment were directed to run concurrently. It is the said judgment which is assailed in these appeals. 7. I heard Advocate Sri. Vijayabhanu, the learned counsel appearing for A1, (the appellant in Crl.A. No.2255/2008) Sr. Adv. Sri.K.P.Dandapani, the learned counsel appearing for Crl.Appeal Nos. 2208, 2255 and 2248 of 2008 -:4:- A2 (the appellant in Crl.Appeal No.2208/08) and Adv. Sri. B.Raman Pillai, the learned counsel appearing for A3 (the appellant in Crl.A. No.2248 of 2008) and Adv. Sri. P.N. Sukumaran, the learned Public Prosecutor for the Vigilance Department. 8. Adv.Sri.P.N.Sukumaran, the learned Public Prosecutor, defending the State submitted that the conclusions reached by the court below do not warrant any interference at the hands of this Court and that the evidence relied on by that court is sufficient to justify the conviction entered and the sentenced passed against the appellants. 9. After hearing both sides and after perusing the records, I am satisfied that the prosecution has failed to establish the guilt of the appellants beyond reasonable doubt. 10. Under the Prime Minister's Special Agricultural Scheme, the work of renovation of Parayottukonam Chira at Keezhuvilam in Chirayinkeezhu Taluk, Thiruvananthapuram District was entrusted with the 4th accused S,. Muraleedharan Nair, who was the Secretary of Pammamkottukonam Group Farming Ela Samithi,, Keezhuvilam (“the Ela Samithi” for short). Crl.Appeal Nos. 2208, 2255 and 2248 of 2008 -:5:- Administrative sanction was given for the work for a sum of Rs. 8,57,000/- as revealed by Ext.P12 (g). As per Ext.P13 guidelines pertaining to the execution of the work under the above scheme, works for a total cost above Rs. 50,000/- are to be checked either by the Assistant Director of Agriculture or an Officer in the rank of Assistant Executive Engineer in the Departments of Agriculture and Soil Conservation. The work proposed to be carried out should be explained in detail in a General Body meeting of the Samithi specially convened for the said purpose and the details of the work proposed, estimated cost of each item of work, the subsidy allowable from the Government and the contribution to be made by the beneficiaries should be explained in detail. The invoice showing the various items of work is to be submitted by the Secretary of the Ela Samithi to the Agriculture Officer who in this case was the 2nd accused and the same with his or her recommendation is to be submitted to the Assistant Director of Agriculture (who in this case was the first accused) and she will forward the same to the Assistant Executive Engineer (who in this case was the 3rd accused). It is for the Assistant Executive Engineer to make a personal check Crl.Appeal Nos. 2208, 2255 and 2248 of 2008 -:6:- of the work and propose the valuation certificate. Ext.P12 (c) is the abstract estimate showing the work as originally proposed to be carried out and Ext.P12 (d) is the detailed estimate for the work. The period of the work was from 10-08- 1993 to 28-5-1994. While so, on 3-3-1994 the Ela Samithi passed a resolution for conducting certain additional work such as construction of bunds, removal of waste from the chira, pumping out of water and plastering of the top portion of the retaining walls. Pursuant to the said resolution Ext.P5 letter signed by the President one Ramakrishna Pillai and Secretary one G. Muraleedharan was placed before the appellants. The said letter was recommended by A2 as revealed by Ext.P5. A3 got a copy of the letter of recommendation from P.W.6 (K.K.Ramakrishnan) the then Principal Agricultural Officer as per Ext.P12 (J ) forwarding letter. On the basis of Ext.P12 (J) A3 got Ext.P12 (f) revised estimate for the additional work. The said revised estimate is prepared by P.W.8 who was a Work Superintendent in that office. The additional work was also to be carried out within the sanctioned amount of Rs.8,57,000/-. The entire work including additional work was completed on 28- Crl.Appeal Nos. 2208, 2255 and 2248 of 2008 -:7:- 5-1994. 11. The main charge against the appellants is that 13.05.09 M3 of earth was wrongly shown to have been brought from outside and utilised for the construction of the bund by making false entries in the records whereas, according to the prosecution no earth was brought from outside but the construction of the bund was effected by utilising the earth obtained from the bund site itself after de-silting the sand. 12. The accusation was first made by one S. Anvar alleging corruption in the execution of the additional work leveling allegations to the effect that no earth had been brought from outside. Pursuant to the accusation an internal inquiry was conducted and it culminated in a report showing that the allegations were baseless. The unrelenting Anvar went on petitioning the authorities resulting in a departmental inquiry in which also the appellants were not found guilty. Then came a letter by the said Anvar to the Chief Minister on 1-4-1995 culminating in a Vigilance inquiry being ordered. Ext.P14 is the files pertaining to the departmental inquiry in which it was observed that since a parallel vigilance inquiry was on foot and Crl.Appeal Nos. 2208, 2255 and 2248 of 2008 -:8:- also since a detailed internal inquiry was already conducted, there was no point in continuing departmental enqiry and that the result of the vigilance inquiry could be awaited. 13. On 9-6-1998 one Vincent K. Joseph a Dy. S.P. of the Vigilance Department registered Ext.P24 suo motu F.I.R. against the four accused persons. Eventhough the said officer was available he was not examined to prove Ext.P24 FIR but instead it was marked through P.W.16 the Circle Inspector of Vigilance who investigated this case. 14. P.W.1 is the President of the Panchayath. He was cited to prove that the earth de-silted from the bund site alone was used for the construction of the bund and that no earth was brought from outside. He, however, did not support the said case of the prosecution and he categorically deposed before Court that earth was transported from outside the bund site for the construction of the bund. P.W. 2 (Kurian George) who was the Deputy Director of Kerala Highway Research Institute is the expert examined to prove Ext.P2 test report as per which eight samples of earth allegedly taken from different parts of the site were subjected to physical analysis to conclude that 6 of them Crl.Appeal Nos. 2208, 2255 and 2248 of 2008 -:9:- were comparable with 2 of the samples allegedly taken from the pond inside the chira. The details of the sampling and the conclusions reached under Ext.P2 test report etc. will be adverted to later. P.W.3 (Kamal Kumar) was the Secretary of Eala Samithi. He was the successor -in -office of the absconding 4th accused . He proved Ext.P4 to P6. P.W.4 (R.Mohanan Nair) was a Lower Division Clerk in the office of A1 during the period after his tenure. He produced Exts.P8 to P11 documents under Ext. A7 inventory. P.W.5 (Smt. Latha) is another Lower Division Clerk in the office of A1 at the relevant time. She identified the initials and signatures of A1 and A2 in the cash book and Ext.P8 files etc. P.W.6 (K.K. Ramakrishnan) was the Principal Agricultural Officer. He speaks about the procedure in sanctioning estimate etc,. Ext.P12 file and P13 guidelines were marked through him. P.W.7 (U.Mani) was the State Agricultural Engineer. He proved Ext.P14 inquiry report of the departmental inquiry conducted in this case. He also deposed about the procedure regarding the execution of work etc. P.W.8 (Jayakumar) was the Work Superintendent in the office of A3. He has given evidence with regard to the entries in Crl.Appeal Nos. 2208, 2255 and 2248 of 2008 -:10:- Ext.P12 files and P15 Level Field Book. He, however, did not support the prosecution. P.W.9 (Rajmohan) was the Assistant Engineer at the relevant time. He was subordinate to A3. He has proved the valuation statement in various levels in Ext.P15 Level Field Book. He has also proved the signature of A3 with whom he was working at the relevant time. P.W.10 (Muraleedhara Kurup) was the Assistant Executive Engineer of Public Works Department. He had visited the site during the vigilance inquiry on 4-1-1994. Ext.P17 is the report prepared by him in which he has assessed the loss at Rs. 27,000/-. P.W.10 deposed before Court that his report is based on presumptions. P.W.11 (Ramanan) was a coolie worker who was engaged for lifting 8 samples of earth from different parts of the bund site. He had collected the samples and handed over the same to P.W.13. This witness also did not support the prosecution. P.W.12 (K.R. Jyothilal) was the Secretary , Food and Civil Supplies and Transport. He had issued Ext.P19 sanction to prosecute A2 while P.W.12 was holding the post of Director of Agriculture. P.W. 13 (George Vengal) was the Executive Engineer of Irrigation. He collected the samples from P.W.11. Crl.Appeal Nos. 2208, 2255 and 2248 of 2008 -:11:- Ext.P20 is his site inspection report dated 20-1-2001 in which he had assessed the loss at Rs. 59,906. Ext.P21 is a sketch prepared by him. P.W 14 (Radhakrishnan Nair) was an Upper Division Clerk of the Agricultural Directorate. He has produced documents under Ext.P22 inventory prepared by P.W.16 the investigating officer. P.W.15 (P.Mohanan) was the Inspector of Vigilance who had questioned P.Ws 2 and 12 . P.W. 16 (Suresh Babu) was the Circle Inspector of Vigilance who conducted the investigation. Ext.P24 F.I.R. registered by C.W. 20 (Vincent K. Joseph) was marked through him. P.W.17 (K.Sreekantan Nair) was the Dy.S.P. Vigilance, who laid the charge. Ext. P25 sanction order dated 25-4-2003 allegedly issued by the Secretary, Vigilance to prosecute A3 was marked through this witness who is neither the sanctioning authority nor a person familiar with the signature of the sanctioning authority. The charge was laid on 21-10-2003. 15. The court below relied on Ext.P2 test report, the testimony of P.W.2 the expert and that of P.Ws 10,13 and 16 to find the appellants guilty of the offences charged against them. In the first place, P.Ws 1, 8 and 11, though hostile to the Crl.Appeal Nos. 2208, 2255 and 2248 of 2008 -:12:- prosecution, have categorically deposed before Court that for the construction of the bund was by utilising earth brought from outside as is discernible from the files. P.Ws 2, 10, 13 and 16 have not proved by any acceptable evidence that no earth was brought from outside or that the earth which was utilised was generated from the bund site itself by de-silting the sand. Ext.P12 (e) is the valuation statement prepared by A3 on the basis of the invoice submitted by the Ela Samithi of which A4 was the Secretary. Ext.P8 (p) corresponding to page 35 of Ext. P12 file is the invoice submitted by A4 who was the Secretary of the Ela Samithi. Item 9 of Ext.P8 (p) shows that 1588.75 M3 (this is actually a mistake for 1589.27 M3 as can be seen from Ext.P12 files) of earth had been utilised for the construction of the bund. This invoice was recommended by A2 and submitted to A1 who forwarded the same to A3. A3, in turn, made a physical verification and prepared the valuation certificate (Ext.P12 (e). A perusal of the valuation certificate shows that the total earth used was 1589.27 M3 of which the quantity of earth excavated from the bund site was 284.18 leaving a balance of 1305.09 which is alleged to be the prosecution to be Crl.Appeal Nos. 2208, 2255 and 2248 of 2008 -:13:- the earth which was wrongly shown as brought from outside. The only evidence to show that the said quantity namely 1305.09 M3 of earth was generated from the bund site itself and was not transported from outside is the result of the tests conducted by P.W.2 on the 8 samples allegedly lifted by P.W.11 and handed over to P.W.13 from 8 different locations of the chira. In the first place, it was after 7 years of the completion of the work that on 18-11-2000 P.W.13 allegedly took the samples. P.W.13 does not say the various sources from where those 8 samples were collected. According to him, they are found in Ext.P21 sketch. It was not explained either by P.W.13 or by the investigating officer P.W.16. Admittedly, no mahazar or other contemporaneous record was prepared by P.W. 13 while taking the samples. The samples which were allegedly collected on 18- 11-2000 were produced before the Court below only on 22-1- 2001. Until then who was the custodian of those samples and what were the conditions under which they were kept etc. are left to be guessed by the Court. After their production in Court on 22-1-2001 the samples were sent from the court below on 7-2-2001 along with a covering letter. No forwarding Crl.Appeal Nos. 2208, 2255 and 2248 of 2008 -:14:- note has been produced or marked to indicate as to what exactly was the nature of the 8 samples and what exactly was the request made to the expert. But page 5 of Ext.P2 contains an abstract of test results indicating that the 8 samples which were given the marking PIT-I, PIT-II, PIT-III, PIT-IV, PITIL, PIT-III P, PIT-IV P and PIT-IV L were collected from various portions of the bund and also from the pond. It is not known from where the expert got all the above details. The conclusion reached under Ext.P2 report was that the samples marked as PIT-I, II, III and IV, III-P and IV-P come under the same group and PIT-IV comes in the borderline of the above group. What was sought to be made out from Ext.P2 report is that the samples of the earth collected from portions of the bund were comparable with the samples collected from the pond to indicate that the earth utilised for constructing the bund was generated from the bund site itself. But then, P.W.2 has clearly admitted that the specific gravity, liquid limit, plastic limit, plasticity index, effective size etc. of each and every sample are different. Hence, even if Ext.P2 report could be relied on, the samples allegedly collected from different parts of the bund are only comparable with the 2 Crl.Appeal Nos. 2208, 2255 and 2248 of 2008 -:15:- samples from the pond. Ext.P2 is fraught with all the infirmities as indicated above even assuming that there was evidence to show that the samples were collected from the six portions of the bund as attempted to be made out. From Ext.P2 report and the testimony of P.W.2 it cannot be concluded that no earth was brought from outside or that the entire earth utilised for the construction of the bund was generated from the bund site itself . It is also pertinent to note that even though the samples were despatched to the expert from the Special Court, Ext.P2 report was not despatched to the court but instead it was sent to the Director, Vigilance and Anti Corruption Bureau, Thiruvananthapuram and was produced before Court by P.W.17 who laid the charge. Ext.P2 (a) covering letter dated 18-6-2002 found along with Ext.P2 report shows that the report was sent from the office of the Kerala Highway Research Institute to the Director of Vigilance and Anti Corruption Bureau, Thiruvananthapuram. It is not explained as to why the report was not sent to the court which had forwarded the samples to the Institute for its report. Crl.Appeal Nos. 2208, 2255 and 2248 of 2008 -:16:- 16. If we go by Ext.P17 report then the loss is Rs. 27,000/-. If we go by Ext.P20 report, then the loss is Rs. 59,906/-. These amounts swelled to Rs. 2,28,390/- in Ext.P12 (e) valuation certificate and this is the amount shown in the charge sheet and Court charge. 17. What now survives for consideration is the admissibility and reliability of Ext.P25 prosecution sanction dated 25-4-2003 purportedly issued by the Secretary, Vigilance to prosecute A3. The sanctioning authority was not examined to prove Ext.P25 sanction order. Even his signature has not been proved by any person acquainted with his signature. Ext.P25 sanction order itself was produced four years after the charge- sheet was laid before the Court. It was allegedly produced before court by one Sreekumaran Nair, Dy.S.P. of the Vigilance Department. He was neither cited as the charge-witness nor examined before Court. Thus, Ext.P25 cannot be looked into to hold that it is an order for sanction to prosecute A3. For that reason also the prosecution of the appellants was bad. The result of the foregoing discussion is that the Crl.Appeal Nos. 2208, 2255 and 2248 of 2008 -:17:- prosecution has failed to establish that 1305.09 M3 of earth utilised for the construction of bund was not transported to the site from outside and that the records maintained by the accused showing the transportation of earth and utilisation of the same for the construction are false entries. The conviction entered and the sentence passed against the appellants overlooking these vital aspects cannot be sustained. The appellants are accordingly found not guilty of the offences under Section 13 (1)(d) punishable under Section 13 (2) of the P.C. Act and Sec. 120 B I.P.C. and are acquitted thereunder. They shall be set at liberty forthwith. These appeals are allowed as above. Dated this the 8th October 2009. Sd/-V. RAMKUMAR,JUDGE. ani/sj. /true copy/