IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN TUESDAY, THE 12TH APRIL 2011 / 22ND CHAITHRA 1933 CRL.A.No. 538 of 2003() ---------------------------- CC.23/1998 of ENQUIRY COMMISSIONER & SPECIAL COURT, THIRUVANANTHAPURAM .................... APPELLANT(S): ACCUSED NO.1 ------------------------------------ SHRI.K.K.PHILIP, S/O. K.P. KURIAN (ACCUSED NO.1) KANNANKARA PUTHENPURAYIL, KUZHIMATTOM P.O., KOTTAYAM DISTRICT. BY ADVS. SRI.JOY THATTIL ITTOOP SRI.SUNNY MATHEW RESPONDENT(S):COMPLAINANT ------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLI PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.B.VINOD THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 12/04/2011, ALONG WITH CRA NO. 539 OF 2003 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs P.S. GOPINATHAN, J. -------------------------------- CRL. A. Nos. 538 & 539 OF 2003 -------------------------------- Dated this, the 12th day of April, 2011. J U D G M E N T ~~~~~~~~~~~ The appellants are accused 1 and 2 in C.C. 23/1998 on the file of the Enquiry Commissioner and Special Judge, Thiruvananthapuram. In the final report, the 2nd accused was the 3rd accused. They were working as the Superintending Engineer and Executive Engineer from 6.7.1990 to 28.2.1991 and 28.9.1990 to 1.11.1990 respectively in Kallada Irrigation Project LBC formation of Kottiyam branch canal from chainage 6486M to 8735M. Late K.Y. Abraham, who was originally arrayed as the second accused, was the contractor to whom the said work was awarded. Accepting the lowest tender submitted by late Abraham, Ext.P3(a) original agreement dated 24.8.1987 was executed between the Contractor Abraham and PW.4, the then Superintending Engineer. Work site was handed over on 16.12.97. After executing the agreement, it was brought to the notice that some changes were required in the levels. Consequently, proposals were made and in terms of the revised proposal supplemental agreement No.1, which was Crl.A.No.538 & 539/2003 2 marked as Ext.P15 dated 13.9.1988, was executed between PW.4 and the contractor. The period for execution of the work was twelve months from 21.1.1988. Due to various reasons the contractor could not complete the work within the time frame. Hence, supplemental agreements No. 2 and 3, which were marked as Exts.P20 and P21 respectively, were executed on 22.2.1990 for extending the period for execution. During the course of the execution of the work, the contractor advanced certain claim for revised rates and extra claims. The claim by the contractor was duly processed and after a negotiation with the contractor, PW.6, the then Superintending Engineer, on 22.2.1990 itself, executed supplemental agreement No.4 which was marked as Ext.P23. The contractor continued to lodge claim for revision of rates and demanded payments as if various items of the work were extra. According to the prosecution, the present second accused, by Ext.P22(g) letter, recommended to treat the construction of the culvert as extra item. The prosecution would allege that the said letter was a result of the conspiracy between accused 1 and 2 and the contractor (original second accused) and in pursuance to Ext.P22(g), after negotiation between the first accused and the contractor, Crl.A.No.538 & 539/2003 3 supplemental agreement No. 6 dated 19.10.1990, which was marked as Ext.P33 was executed agreeing for an exorbitant rate in respect of items of work covered by Ext.P33 whereby the Contractor got undue pecuniary advantage of Rs.8,40,010.69/-. The period for the execution of the work extended by Exts.P20 and P21 was further extended till 31.3.1991 by executing supplemental agreement No.5, which was marked as Ext.P39 on 19.10.1990, i.e. on the date on which Ext.P33 was executed. The contractor again requested for revision of rates and to make payments as if extra items as per letter dated 13.2.1991, copy of which was marked as Ext.P24(O). Simultaneously the 1st accused and contractor again conspired and in pursuance to the conspiracy between the first accused and the contractor, executed supplemental agreement No.7 which was marked as Ext.P25 on 20.2.1991 whereby the contractor had obtained undue pecuniary advantage amounting to 12,81,031.78/-. 2. The prosecution would allege that as a result of the conspiracy between accused 1 and 2 and the contractor, supplementary agreement No.6 was executed and thereafter, supplementary agreement No. 7 was executed as a result of the Crl.A.No.538 & 539/2003 4 conspiracy between the first accused and the contractor and that accused 1 and 2 abused their office and committed misconduct whereby the contractor had obtained undue pecuniary advantage altogether amounting to Rs. 21,21,041.29 (Rs.8,40,161.69 + 12,81,031.78). Having brought to the notice of the Vigilance and Anti Corruption Bureau, a preliminary enquiry was conducted wherein misconduct and conspiracy was revealed. Basing upon the report of the preliminary enquiry, PW.17, the then Deputy Superintendent of Police, Vigilance and Anti Corruption Bureau registered a case as Crime No.5/94 on 23.9.1994 for offences under Section 120B IPC and Section 13(2) r/w 13(1)(d) of the Prevention of Corruption Act (hereinafter referred to as ‘P.C. Act’) against the first accused and the contractor as second accused. Ext.P51 is the First Information Report. PW.18, another Deputy Superintendent of Police, took over the investigation. He completed the investigation and laid the charge sheet against the two accused in the First Information Report and against the second accused herein as the third accused. Crl.A.No.538 & 539/2003 5 3. The learned Special Judge took cognizance and issued process. In the meanwhile, the contractor who was the second accused left to his heavenly abode. Consequently, accused 1 and 3 were heard after furnishing them the copies of the records. On finding that there are materials to send accused 1 and 3 for trial, a charge was framed for offences under Section 120B IPC and section 13(2) r/w 13(1)(d) of the PC Act. When the charge was read over and explained, they pleaded not guilty to the charge. Thereafter, accused 1 and 3 were re-arrayed as accused 1 and 2 after omitting the deceased original second accused from the party array. 4. On the side of the prosecution, PWs 1 to 18 were examined and Exts.P1 to P69 were marked. During cross examination of PW.6, a portion of the case diary statement was marked as Ext.D1. After closing the evidence for the prosecution, accused were questioned under Section 313(1)(b) of the Code of Criminal Procedure. They admitted their official status and denied the incriminating evidence. Responding to the call for adducing defence evidence, the second accused examined the Secretary to Government, Public Works Crl.A.No.538 & 539/2003 6 Department, as DW.1. On appraisal of the evidence, the learned Special Judge arrived at a finding of guilt. Consequently, both accused were convicted. The first accused was sentenced to rigorous imprisonment for four years and a fine of five lakh rupees for offence under Section 13(2) r/w Section 13(1)(d) of the PC Act. The second accused was sentenced to rigorous imprisonment for one year and a fine of Rs. 20,000/- under Section 13(2) r/w 13(1)(d) of the PC Act. For offence under Section 120B IPC, the first and second accused were sentenced to rigorous imprisonment for two years and one year respectively. Assailing the above conviction and sentence, these appeals were preferred. 5. I have heard Sri. Sunny Mathew, learned counsel appearing for the appellants and Sri. B. Vinod, the learned Government Pleader. 6. The allegation that the appellants were working as Superintending Engineer and Executive Engineer, Kallada Irrigation Project, during the period from 6.7.1990 to 28.2.1991 and 28.9.1990 to 1.11.1990 respectively and as such they were Crl.A.No.538 & 539/2003 7 public servants coming under Section 2(c) of the PC Act is not only not disputed but also admitted. The fact that the canal formation work including cut and cover and construction of the culverts were awarded to late Abraham for which Ext.P3 (a) agreement dated 24.8.87 was executed is also not only not disputed but also admitted by the appellants. Therefore, the finding of the lower court on that aspect is hereby confirmed. 7. PW.1 was the Assistant Executive engineer during the year 1985-88 in the Kallada Irrigation Project. PW.2 was the Executive Engineer from 1.9.1987 to 8.8.1988. PW.3 was the Executive Engineer who succeeded PW.2. PW3 was holding the office from 1.12.1988 to 18.3.1989. PW.4, as mentioned earlier, was the Superintending Engineer who executed Ext.P3(a) agreement with the contractor. PW.5 was the Executive Engineer who succeeded PW.3. He was holding the office from 18.3.1989 to 17.11.1989. PW.6 was the Superintending Engineer from 20.3.1989 to 26.4.1990. The evidence of PWs 1 to 6 would show that after the execution of Ext.P3(a) agreement, but before starting the execution of the work, it was felt that change of design was warranted. Accordingly, proposal was sent Crl.A.No.538 & 539/2003 8 by PW.2. Accepting the proposal, after negotiation between the first accused and the contractor, Ext.P15, the supplemental agreement No.1 was executed on 13.9.1988. Thereafter, the contractor had been making requests for revision of the rates and for treating the work as extra item stating change of designs. Pursuing the request of the contractor, proposal was made by PW.5 which was accepted by PW.6 and after negotiation with the contractor, Ext.P23 supplementary agreement No.4 was executed on 22.2.1990. Since the time for execution of the work expired by then, supplemental agreement Nos. 2 and 3, Exts.P20 and 21 were executed for extension of the period for completion. The prosecution has no case that till the execution of Ext.P23, there was any abuse of the office or any conspiracy between the contractor or any official of the Department. Succeeding to PW.6, the first accused took charge as Superintending Engineer. The conspiracy and abuse of the office by the appellants and misconduct thereon were alleged subsequent to the first accused assuming the office of the Superintending Engineer. According to the prosecution, though there was some change of designs there was no reason to vitiate the contract and that the contractor was not entitled to claim any extra rate or payment as Crl.A.No.538 & 539/2003 9 extra item due to the change of designs. Ext.P33 and P25 were executed on 19.10.1990 and 20.2.1991 respectively agreeing for an exorbitant rate whereby the contractor had undue pecuniary advantage as mentioned earlier. 8. For a correct appraisal of the prosecution case, a reading of the relevant portions of the evidence of the prosecution witnesses would be relevant. PW.1 would depose that the estimate for the formation of the left Bank canal, Kottiyam Branch chainage 6486 M to 8735 M was prepared by the Assistant Engineer, Varghese Leen, who was reportedly abroad at the time of taking evidence and that Ext.P1 is the file relating to the estimate and Ext.P1(b) is the estimate for Rs. 49,25,000/-. The estimate covers five culverts and two cut and cover. PW.1 forwarded the same to PW.4 who accepted the proposal. Ext.P2 is the file maintained in the office of PW.4. The proposal was sent to the Chief Engineer who accepted the proposal and accorded technical sanction for executing the work at a cost of Rs. 46,25,000/- and was given orders to execute the work after calling for tender. Tender was invited. Late A.Y. Abraham was selected as the lowest bidder. Work was awarded Crl.A.No.538 & 539/2003 10 to him. Ext.P3 is the file relating to the inviting of tender and Ext.P3(a) is the agreement executed between PW.4 and the contractor. Ext.P3(a-1) is the LCB conditions, P3(a-2) is the schedule and Ext.P3(a-3) is the drawings. PW.1 would further depose that the schedules, drawings etc. would form part of Ext.P3(a). While making temporary Bench mark corrections, it was noticed that there was difference in investigation levels and a revised estimate was prepared. Ext.P4 is the file relating to the revised estimate. The revised estimate prepared by the Assistant Engineer Varghese Leen was forwarded to the Superintending Engineer. It was forwarded to the Chief Engineer who accorded Ext.P5 technical sanction. Ext.P5(b) is the revised sanctioned estimate. Revised technical sanction was accorded for Rs. 38,75,000/-. As per the revised proposal, there was reduction in the length of the canal by 21 meters and there was proposal for flume canal for a length of 50 meters and other changes and that was how the estimate amount was reduced. PW.1 would further depose that the work site was handed over to the contractor on 16.12.1987 and the work was started as per the revised estimate and that Ext.P6 is the file relating to the starting of the work and Ext.P6(a) is the document relating to Crl.A.No.538 & 539/2003 11 the handing over the site to the contractor. 9. PW2 would depose that while he assumed charge of the office on 1.9.1987, Ext.P3(a) agreement was executed and that the work site was handed over to the contractor after he assumed the office and that before starting the execution of the work, the proposal for revision was obtained and Ext.P5(a) technical sanction for the revised work was accorded by the Chief Engineer during the tenure of PW.2. PW.2 was directed by Ext.P4(b) letter addressed by the Chief Engineer to arrange the work through selected contractor, negotiate and fix the reasonable rates. According to PW.2, even if there was change in drawings, as per Clause 10, 11 and 12 of LCB conditions, the contractor was bound to execute the work and the contractor started execution of the work. After completing a portion of the work, measurement was recorded on the basis of which part Bill No.1 was prepared. Ext.P8 is the part bill and Ext.P9 is the M Book. In pursuance to Ext.P8, a sum of Rs. 7, 72,787/- was passed and released in favour of the contractor. Crl.A.No.538 & 539/2003 12 10. PW3 would depose that he succeeded PW2 as the Executive Engineer in KIP RB Division No.1 and that at the time when PW3 took charge, the agreement was executed and work was begun. Part payment was also made. He prepared second part bill, which is marked as Ext.P11. He noted the measurements in Ext.P9 M book and that the payment was made by cheque and that Ext.P12(a) is the counter foil. Ext.P13(a) is a copy of the letter submitted by the Contractor to the Superintending Engineer and the same was forwarded to him for his report. But he could not give the report as he was transferred. It was further deposed that during the course of the execution of the work the Contractor had lodged so many claims and that Ext.P13(b) is a copy of the petition submitted by the Contractor to the Superintending Engineer on 23.11.1988 and that Ext.P3(c) is the reply given from the office of the Superintending Engineer. PW3 would further depose that Ext.P13(e) is the reply given by PW3 to the Superintending Engineer in relation to the petitions submitted by the Contractor on 14.9.1988, 23.11.1988 16.12.1988 and 8.2.1989. In that reply it was specifically mentioned that the claim made by the Contractor was false and that the claim is therefore not Crl.A.No.538 & 539/2003 13 allowable. 11. PW4 would depose that from 22.6.1987 to 2.3.1989 he was the Superintending Engineer, KIP RB Circle and that ExtP3(a) original agreement was executed between himself and the Contractor and that after the execution of Ext.P3(a), a revised estimate was necessitated and that Ext.P4(a) is the proposal given by the Executive Engineer for the revised estimate. After scrutiny, PW4 forwarded the same to the Chief Engineer and that in pursuance to the proposal, the Chief Engineer had issued revised technical sanction. Ext.P5(a) is the revised technical sanction. In pursuance to Ext.P5(a), he sent a letter to the Contractor to suggest reasonable rates and that Ext.P5(c) is the letter given by him to the Contractor. Responding to Ext.P5(c), the Contractor suggested revised rate. Ext.P14(a) is the letter given by the Contractor. In pursuance to Ext.P14(a), a negotiation was made and thereafter Ext.P15 supplemental agreement No.1 was executed 13.9.1988. On 8.2.1989, the Contractor submitted another letter, which is marked as Ext.P14(d), wherein it was stated that because of the revised proposal there was decrease in the earthwork quantity as Crl.A.No.538 & 539/2003 14 well as in the thickness of the reinforced concrete. Therefore, he had demanded revised rate for the earthwork, cement concrete and the reinforced cement concrete. Ext.P14(d) was forwarded to the Executive Engineer on 16.2.1989 for his report. Ext.P14(e) is yet another letter given by the Contractor stating that there was change in the nature and scope of work and that the work that was being done then was different. Hence for all CD (Cross Drainage) works mutually agreed rates were sought to be fixed and that Ext.P14(f) is the reply given by PW4 to the Contractor. It was acknowledged as per Ext.P14(g) acknowledgment. In Ext.P14(g) it was intimated that the changes made were within the scope of the agreement and that the Contractor was entitled to request for drawings or for getting instructions as provided for in the agreement and that, if any, extra items were necessitated it would be dealt as provided for in the agreement. 12. PW5 would depose that he was working as Executive Engineer, KIP, RB Division No.1, from 18.3.1989 to 17.11.1989 in succession to PW3 and that the report in pursuance to Ext.P14(d) was sent by him. Ext.P13(f) is the copy of the report. Crl.A.No.538 & 539/2003 15 In Ext.P13(f) it was stated that only 50% of the cut and cover work was executed and that whether there is any extra item could be found only after the completion of the work and that on 21.7.1989 the Contractor had given a letter to the Superintending Engineer and it was forwarded to PW5 for his report and that Ext.P13(g) is the report. In Ext.P13(g) it was mentioned that there was change in the design of the bridges and difference in the quantity and therefore, the work had to be treated as pure extra items and the Contractor was entitled to extra rate for the said work and that Ext.P13(g) is the copy of the report submitted by him wherein the quantity variation is specifically mentioned. Responding to Ext.P13(g), the Superintending Engineer on 4.9.1989 sent Ext.P13(i) letter asking PW5 to report the actual quantity of the work executed by the Contractor and that Ext.P13(g) is the reply narrating the details of the work executed by the Contractor. PW5 would further depose that 3rd part bill was prepared by him. Ext.P17 is the 3rd part bill and that in pursuance to Ext.P17, a sum of Rs.1,37,510/- was paid through cheque and that Ext.P19(a) is the counterfoil of the cheque. Crl.A.No.538 & 539/2003 16 13. PW6 would depose that he was the Superintending Engineer, KIP, RB Circle from 20.3.1989 to 26.4.1990 and that he succeeded the first accused and that during his tenure supplemental agreement Nos.2 and 3 were executed between the 1st accused and PW6; and that Exts.P20 and 21 are the supplemental agreement Nos.2 and 3, whereby the term for completion of the work was extended till 31.3.1991. He would further prove that Ext.P22 is Volume No.7 file maintained in the office and that Ext.P22(a) is the original of Ext.P13(h) report and that in pursuance to the demand made by the Contractor a negotiation was conducted and that on 22.2.1990, Ext.P23 supplemental agreement No.4 was executed. 14. PW7 would depose that from 1.11.1990 to 2.9.1991 he was working as Executive Engineer. He took charge from the 2nd accused. He would further depose that Ext.P24 is the Vol.No.8 file maintained in the office regarding the execution of the work and that Ext.P24(a) is the letter given by the Contractor on 10.10.1990. In Ext.P24(a) the Contractor had demanded revised rate for certain items of work. Ext.P24(a) was forwarded to the Executive Engineer for his report. Ext.P24(b) is the report Crl.A.No.538 & 539/2003 17 submitted by the 2nd accused on 30.10.1990. In Ext.P24(b), the 2nd accused had stated that the claim made by the Contractor in respect of para 1 and 2 in Ext.P24 and 24(a) is not sustainable. But he had recommended to consider the claim in 3rd para for the reason that there required a lead of 200ms by headload. Thereafter, on 12.11.1990, the 1st accused again sought for a report and that Ext.P24(c) is the copy of the letter and that Ext.P24(d) is the reply given by PW7 to the Superintending Engineer. In Ext.P24(d), PW7 had recommended payment at the rate of Rs.27.4/m3 for embankment forming. Rs.5.41/m3 was recommended for rehandling charges for refilling the cut and cover. Thereafter, the 1st accused again asked a report by Ext.P24(e) letter dated 30.1.1991. In that letter it was enquired as to whether the Contractor could be given extra rate for cut and cover in addition to what was agreed in the supplemental agreement No.4 and whether the Contractor was eligible for negotiation. PW7 was also asked to report whether the Contractor was entitled to extra claim towards the charges for refilling the cut and cover area and whether the Contractor was entitled to extra claim for filling earth in chainage 6600m to 6850m. Ext.P24(f) is the reply given by PW7 on 6.2.1991. In Crl.A.No.538 & 539/2003 18 Ext.P24(f), PW7 had reported that there is change in the chainage regarding cut and cover and there is difference in the thickness of barrel and therefore it was for the Superintending Engineer to decide whether there was design change. As against the claim No.2, it was reported that the said claim is admissible. Regarding Claim No.3, it was mentioned that there was an earlier letter from the office. In pursuance to that, on 19.2.1991, the 1st accused arranged a negotiation between the Contractor and thereafter, Ext.P25 supplemental agreement No.7 was executed. In Ext.P25, forming of embankment was considered as an extra item for which Rs.98/m3 was allowed as against his recommendation at the rate of Rs.18.75/m3. The original agreement for cut and cover earthwork excavation was R.15/m3. Instead of that, Rs.45/m3 was agreed. For item No.2 cement concrete 1:4:8, as against agreed rate of Rs.300/m3, Rs.815/m3 was agreed. For item No.3, RCC 1:2:4, as against the original agreed rate of Rs.70/m3, Rs.1950/- m3 was agreed. For item No.4, reinforced cement, as against original agreed rate of Rs.7,000 per Ton Rs.12,600/ Ton was agreed. For reinforced cement 1:1, as against agreed rate of Rs.200/m3, Rs.650/m3 was agreed. For Item No.6 cement plastering (Cement mortar) 1:3 in Crl.A.No.538 & 539/2003 19 15mm thickness, as against the original agreed rate of Rs.10/m2, Rs.35/m2 was agreed in Ext.P25. 15. PW7 would further depose that cement and steel were supplied from the department for the casual work and that during his tenure 6th part bill was prepared including certain items in Ext.P25 and that against the withholding of another bill of the Contractor, the Contractor filed an original petition before this Court and obtained an order for making payment. He would further depose that the rate agreed in Ex.P25 was exorbitant and thereby the State had suffered huge pecuniary loss and that in pursuance to the order of this Court, Ext.P26 bill was passed and payment was effected. 16. PW8 would depose that he was working as Draftsman in KIP RB Circle from 1983 to 1991 and that Ext.P32 is the Note file Vol.No.1 relating to the work and that Ext.P32(a) is the note prepared by him in pursuance to the letter dated 21.7.1989 submitted by the Contractor and the letters of the Executive Engineer dated 26.10.1989 and 8.11.1989, 13.8.1990 and 27.12.1989 and that Ext.P14(h) is another letter dated 21.7.1989 Crl.A.No.538 & 539/2003 20 submitted by the Contractor. In Ext.P14(h) the Contractor had requested to treat the construction of the culvert as an extra item alleging change in design. In pursuance to the note prepared by PW8, the Superintending Engineer (1st accused) asked to put up the file for inspection. Thereafter, the 1st accused had put a note that he had inspected the site and asked the Executive Engineer to inspect the work and to submit a report. The 2nd accused (Executive Engineer) was asked to insist the points offered by the by the Executive Engineer - Quality Controller. In pursuance to that note, a letter was communicated to the 2nd accused and that Ext.P22(f) is the copy of the letter and that Ext.P22(g) is the reply