IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 12TH AUGUST 2009 / 21ST SRAVANA 1931 Crl.Rev.Pet.No. 2384 of 2009() ------------------------------ CC.2/2003 of ENQUIRY COMMR. & SPL. JUDGE, TRIVANDRUM .................... REVN. PETITIONER /ACCUSED: ------------------------------------------- PAUL V.THOMAS,S/O.PAULOSE THOMAS, GOVERNMENT CONTRACTOR,VETTUVAZHI PUTHENPURA HOUSE, MEEMPARA P.O., KOLENCHERRY. BY ADV. SRI.M.K.DAMODARAN, SENIOR ADVOCATE SRI.C.A.MAJEED RESPONDENT/COMPLAINANT: -------------------------------------- STATE OF KERALA (DEPUTY SUPERINTENDENT OF POLICE, VIGILANCE AND ANTI CORRUPTION BUREAU, KOLLAM UNIT), REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM. PUBLIC PROSECUTOR: SRI JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 12/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J ---------------------------------------- Crl.R.P.No.2384 of 2009 --------------------------------------- Dated this 12th day of August 2009 ORDER Heard senior counsel appearing for petitioner and learned Prosecutor appear for the respondent. 2. This revision is in challenge of the charge framed against the petitioner by learned Enquiry Commissioner and Special Judge, Thiruvananthapuram in C.C.No.2 of 2003. Charge is that one P S Ganapathykrishna Iyer, who had worked as Superintending Engineer, Kallada Irrigation Project for the period from 03-05-1991 to 12-02-1992 by abusing his official position entered into a criminal conspiracy with the petitioner, a Contractor to whom work relating the project referred to into chargesheet was entrusted with the common object of making undue pecuniary advantage by adopting corrupt and illegal means and in pursuance of that conspiracy the said P S Ganapathykrishna Iyer by mis-utilising and misinterpreting the relevant clauses in LCB specification obtained a petition from the petitioner on 07-05-1991 and negotiated rates. The second charge, it is submitted is consequential to the first charge. As per the charge framed by learned Special Judge, petitioner is to stand trial for offences punishable under section 13(2) r/w.13(1)(d) of the Prevention of Corruption Act (for short, “the PC Act”) and section 120B of the Penal Code (for short, “the Code”). Crl.R.No.2384 of 2009 2 2. It is contended by learned senior counsel that the sections of the PC Act incorporated in the court charge cannot apply to any person other than a public servant. What could at the best be attributed to the petitioner is only the relevant sections of the PC Act, read with the charge of criminal conspiracy under the Code. Hence it is contended that the court charge is illegal. Learned senior counsel also points that going by document No.R16 which is very much relied on by the respondent, liability of petitioner was to pay only a sum of Rs.9750/- out of the sum of Rs.11285/- paid to him. It is pointed out by the learned senior counsel that as per document No.R16 of the Superintending Engineer which is addressed to the Chief Engineer, direction is only to recover the said amount of Rs.9750/- from the petitioner. It is also contended by learned senior counsel that as per item No.7 of the original agreement there was provision of construction of tie beam and hence a fresh agreement was executed as provided under the original agreement itself on 08-08-1992 as per which petitioner was to undertake extra work of reinforcement of RCC work of the tie beam. It is accordingly that extra work was drawn by petitioner. These facts and materials were not taken into account by learned Special Judge while deciding to frame charge, it is argued. Learned prosecutor appearing for the respondent would contend that charge framed required no interference. Crl.R.No.2384 of 2009 3 3. It is submitted by both sides that examination of prosecution witnesses is completed in the court of learned Special Judge and what remains is only questioning under section 313 of the Code of Criminal Procedure and examination of defence evidence if any. At this stage I do not consider it necessary or proper to go into the contention raised by learned senior counsel based on document No.R16 and the provision for execution of extra agreement. But I make it clear that it will be open to the petitioner to take up those contentions before the learned Special Judge at the appropriate stage and if raised, the court will necessarily consider the contention based on document No.R16 if properly brought on evidence and as provided under law. 4. So far as application of the section of offence under PC Act incorporated in the court charge is concerned, I must bear in mind in mind that in effect what is stated in court charge against petitioner is that he conspired with accused No.1 and committed offences as alleged. I also bear in mind that charge under section 120B of the Code is also pressed into service by the respondent. That precisely is the argument of learned senior counsel that if at all offence alleged against the petitioner is made out, it is only under the relevant provisions of the PC Act read with section 120B of the Code. I make it clear that petitioner could urge that contention also before learned Crl.R.No.2384 of 2009 4 Special Judge at the appropriate stage. With the above observation, the revision petition is disposed of. THOMAS P JOSEPH, JUDGE Sbna/