IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 9TH JANUARY 2009 / 19TH POUSHA 1930 Crl.Rev.Pet.No. 3215 of 2008() ------------------------------ AGAINST THE ORDER IN CRMP 574/06 & CRMP 988/08 IN CC.23/2000 of ENQUIRY COMMR. & SPL. JUDGE, TRIVANDRUM .................... REVN. PETITIONER/PETITIONER/ACCUSED NO.2 --------------------- K.SODARAN, S/O.KANNAN, GOVERNMENT CONTRACTOR, SREEKRISHNA NILAYAM EDAMULACKAL, ANCHAL. BY ADV. SRI.P.VIJAYA BHANU SRI.P.M.RAFIQ RESPONDENT(S): --------------- STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. PUBLIC PROSECUTOR SRI.MUHAMMED PUZHAKKARA THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 09/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.R.P.NO.3215 OF 2008 ------------------------------------------ Dated 9th January 2009 O R D E R Revision petitioner is the second accused in C.C.23/2000 on the file of Special Judge, Thiruvananthapuram. Revision petitioner filed Crl.M.P.574/2006 before Special Judge for an order of discharge under Section 239 of Criminal Procedure Code. That application was heard along with similar petition filed by accused 1 and 3. Learned Special Judge dismissed petition by a common order dated 13/8/08. Order is challenged by revision petitioner in this revision. 2. Learned counsel appearing for revision petitioner and learned Public Prosecutor were heard. 3. Argument of learned counsel is that crux of the allegation in the charge is that first respondent exercising clause 44 of General condition of contract embodied in the Local competitive Bidding specifications dishonestly misutilised clause 31 and 32 of LCB specifications by executing supplemental CRRP 3215/08 2 agreement No.4 and awarded huge rates to revision petitioner for 13 items of extra work and clause 44 of LCB has been activated after the work was completed and this aspect was clear from the prosecution case. It is argued that second revision petitioner had claimed 70% additional charge for the extra work way back in 20/12/86 evidenced by records produced and Superintendent Engineer who succeeded first accused had found that rate claimed exceeds 30% and there is no material to prima facie show that there was a conspiracy as alleged or that revision petitioner committed the offences and therefore, learned Special Judge should have discharged revision petitioner under Section 239 of Criminal Procedure Code. Learned Public Prosecutor pointed out that revision petitioner was awarded contract on 24/12/1985 and on 11/6/1987 the contract was foreclosed as the progress of the work was slow and neither revision petitioner nor the Government wanted to continue the contract. It was pointed out that prior to fore-closure, revision petitioner had raised claim for extra work which was not allowed by the department and after for-closure revision petitioner CRRP 3215/08 3 raised an arbitration claim and while the arbitration claim was pending, as a result of conspiracy entered into between revision petitioner and first accused, supplemental agreement was executed on 24/5/90 whereunder claim for remuneration for the 13 items of extra work was allowed by first accused and thereby revision petitioner obtained pecuniary advantage as alleged and in such circumstances, learned Special Judge was justified in dismissing the application for discharge. It was argued that question whether revision petitioner committed the offence along with other accused is a matter to be decided after recording evidence on the materials and he is not entitled to an order of discharge. 4. On hearing the learned counsel and learned Public Prosecutor and going through the order passed by the learned Special Judge, I find no reason to interfere with the order. Question whether there was a conspiracy between revision petitioner and first accused is a matter which could be decided only after evidence is recorded. When the contract was foreclosed on 11/6/87 and when revision petitioner had CRRP 3215/08 4 claimed that 13 items of extra work was executed and the claim was disputed by the department and an arbitration claim was pending and on 25/9/1990 first accused along with revision petitioner executed a supplemental agreement whereunder claim raised in the arbitration was allowed by the first accused, prima facie shows that this is not a case for an order of discharge under Section 239. Revision petitioner is entitled to raise all the contentions at the stage of trial. Revision is dismissed. M.SASIDHARAN NAMBIAR, JUDGE. uj.