IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN FRIDAY, THE 18TH FEBRUARY 2011 / 29TH MAGHA 1932 CRL.A.No. 158 of 2003(A) ------------------------ C.C.NO.34/2000 OF THE COURT OF ENQUIRY COMMISSIONER AND SPECIAL JUDGE, THIRUVANANTHAPURAM APPELLANT(S): PETITIONER/APPELLANT ---------------------------------- E.NAZOMUDIN, S/O.ISMAIL KUNJU, NOW RESIDING AT T.C.NO.49/128, FATIMA COTTAGE, KAMALESWARAM, MANNARKKAD P.O. THIRUVANANTHAPURAM. ASSISTANT EXECUTIVE ENGINEER, FORMER ASSISTANT ENGINEER, MECHANICAL SUB DIVISION ALAPPUZHA. BY ADV. SRI.B.RAMAN PILLAI RESPONDENT(S): RESPONDENT ------------------------- STATE OF KERALA, REPRESENTED BY THE DEPUTY SUPERINTENDENT OF POLICE, VIGILANCE AND ANTI CORRUPTION BUREAU, ALAPPUZHA, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.I.V.PRAMOD THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18/02/2011, ALONG WITH CRA.NO.278 OF 2003 AND CONNECTED CASES THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.S.GOPINATHAN, J. ----------------------------- Crl.A. Nos.158, 161, 162, 277, 278 and 279 OF 2003 ------------------------------ Dated this the 18th day of February, 2011 C O M M O N J U D G M E N T ~~~~~~~~~ ~~~~~~~~~~ These appeals arise out of a common judgment in C.C.Nos. 34/2000, 35/2000 and 36/2000 on the file of the Enquiry Commissioner and Special Judge, Thiruvananthapuram. The appellant in Crl.A.Nos.158, 161 and 162/2003 is the 1st accused in the above three cases. The appellant in the other appeals is the 2nd accused. PW9, the Deputy Superintendent of Police, Vigilance and Anti Corruption Bureau, Alappuzha filed the final reports in the above cases against one Afsal as the 1st accused and the appellants as accused 2 and 3. Before the service of the process, Afsal left to his heavenly abode. So the accused 2 and 3 were renumbered as accused 1 and 2 and they were tried before the lower court. The final report was filed alleging offences under Sections 468, 471 and 120B IPC and under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 (hereinafter referred to as 'the PC Act') read with Section 120B IPC. In pursuance to order in Crl.M.P.No.1065 and 1127/2000 filed by the accused, all the three cases were tried jointly. After trial, the learned Judge Crl.A.No.158/2003 etc. - 2 - arrived at a finding that the prosecution failed to establish the offences under Sections 468 and 471 IPC. But found that the prosecution had succeeded to establish offence under Section 13(2) read with Section 13(1)(d) of the PC Act as against the 1st accused and offence under Section 120B IPC as against both accused. Consequently, the 1st accused was sentenced to rigorous imprisonment for two years each and a fine of Rs.6,000/- each in all the three cases for offence under Section 13(2) read with 13(1)(d) of the PC Act with a default sentence of rigorous imprisonment for six months. For offence under Section 120B IPC, both the accused were sentenced to rigorous imprisonment for one year each in all the cases. The 2nd accused was also sentenced to a fine of Rs.2,000/- each in all the three cases. Assailing the above conviction and sentence, these appeals were preferred. Hereinafter, the appellants are referred to as accused 1 and 2 as referred in the judgment impugned. 2. The prosecution case in brief is that late Afsal was working as Assistant Executive Engineer (Mechanical), Crl.A.No.158/2003 etc. - 3 - National Highway Sub Division, Alappuzha. The 1st accused was working as Assistant Engineer (Mechanical), Sub Division (NH), Alappuzha. As such late Afsal and 1st accused were public servants coming under the definition of Section 2(c) of the PC Act. The 3rd accused was alleged to be the owner of a workshop by name and style 'Saraswathy Engineers'. National Highway, Alappuzha Sub Division had various tools, plants and trucks for carrying out the road works. One among the plant was a Hot Mix Batching plant (HMB-107). Yet another was Paver Finisher (PF 1091/76). Both these plants were under the custody and management of the Assistant Executive Engineer (late Afsal) and the 1st accused. During January and February 1995, PW1, the then Superintending Engineer (Mechanical) inspected the tools, plants and trucks. Ext.P1 is the notes of inspection. PW1 had noticed that false documents were created as if repair works were done on the plants and machines and payments were made without doing any work. He had noticed that there was misappropriation of an amount exceeding Rs.3.5 lakhs. Hence, he recommended for appropriate action against the Assistant Executive Engineer, Crl.A.No.158/2003 etc. - 4 - Assistant Engineer and others involved in the misappropriation. Following Ext.P1 inspection note, the matter was reported to the Vigilance and Anti Corruption Bureau. They conducted a preliminary enquiry, in which it was revealed that there were falsification of accounts, forging documents, using forged documents as genuine, criminal conspiracy and criminal misconduct in which a sum of Rs. 1,92,687/- was involved. On the basis of the report of preliminary enquiry, PW7, then Deputy Superintendent of Police, registered a case as Crime No.VC 5/97/ALP for offence under Sections 468, 471 and 120B IPC and Section13(1)(b) read with Section 13(2) of the PC Act. Ext.P27 is the First Information Report. The investigation was initially taken over by PW7. PW8, then Inspector of Police later took over the investigation. PW7 was succeeded by PW9 who cross checked the investigation conducted by PW8 and submitted 7 final reports. The appeals on hand are relating to three of such reports. 3. In all the final reports, then Assistant Executive Crl.A.No.158/2003 etc. - 5 - Engineer, now late A.K.Afsal, was the 1st accused, as mentioned earlier. It was alleged that the accused 1 and 2 herein along with late Afsal entered into a criminal conspiracy and the 2nd accused herein forged three work bills, Bill No.2070 dated 18.4.1994, Bill No.1820 dated 8.3.1994 and Bill No.18100 dated 1.3.1994 totally amounting to Rs.16,800/- for the repair works in respect of HMB-107 and PF 1091/76 without carrying any repair and that the 1st accused entered those bills in M book Nos.139/91-92, 298/91-92 and late Afsal endorsed check measurements as if the works were done and those bills were genuine and payments were effected to the 2nd accused in pursuance to the above three bills. That is the allegation in CC 34/2000. C.C.35/2000 is in respect of three other bills, namely, Bill No.1810 dt.4.3.1994, Bill No.1813 dt.5.3.1994 and Bill No.1805 dt.2.3.1994, totally amounting to Rs.14,400/- in respect of PF 1091/76. In C.C.36/2000, the allegation is in respect of Bill No.1832 dt.7.3.1994 and Bill No.1839 dt.11.3.1994 totally amounting to Rs.7,000/- in respect of PF 1091/76. It was alleged in those two cases also that the bills were forged by the 2nd accused and produced Crl.A.No.158/2003 etc. - 6 - before the 1st accused, as if genuine bills, without doing any repair works and those bills were entered in the M Book and the works were certified to have been done and the check measurements were made by the Assistant Executive Engineer and in pursuance to those documents Rs.14,400/- and Rs.7,000/- respectively were paid to the 2nd accused. 1st accused and late Afsal did so in abuse of the office as a result of which 2nd accused had undue pecuniary advantage. 4. Responding to the process issued, accused 1 and 2 entered appearance. Having heard either side, separate charges were framed against accused 1 and 2. When read over and explained, both of them pleaded not guilty. Hence, they were sent for trial. It is thereafter the accused applied for joint trial as mentioned earlier. The evidence was recorded in C.C.34/2000. On the side of the prosecution, PWs 1to 9 were examined and Exts.P1 to P33 were marked. After closing the evidence for the prosecution, the accused were questioned under Section 313 of the Code of Criminal Procedure. The 1st accused admitted his official status as Assistant Engineer. The inspection of the machineries and plants by PW1 was admitted. The production of the bills Crl.A.No.158/2003 etc. - 7 - in dispute were also admitted. The payments made in pursuance to bills were also admitted by the 1st accused. According to him, the works alleged in the bills were executed and the payments were duly made. In a written statement, the 1st accused further alleged that PW1 had some personal rivalry against late Afsal and that the tour programme was not intimated to the 1st accused and that PW1 had inspected the machines and plants in August, 1994. PW1, who was not familiar with the sophisticated machines of the National Highways. The Hydrolic hoses, Augur bearings etc. were purchased from Madras and the bills of the workshop included the original price + conveyance charge (transport) + 10% profit + Tax + labour + phone expenses and to avoid confusion, as insisted by late Afsal, original bills were prepared and that certain spare parts of the plants and machineries were interchanged and that all these machines were exposed to sun and rain through out the year and that all what is reported in the notes of inspection is not correct and that such a report was filed due to personal rivalry. Crl.A.No.158/2003 etc. - 8 - 5. The 2nd accused admitted that the bills in dispute were given by him and that the amounts were also received. It was further stated that the spare parts were purchased by him from various places and that after fitting the spare parts, bills were given including the value of the spare parts, labour, transport and other costs and that all the replaced spare parts were handed over to the department. On the side of the 1st accused, two plant operators, an Executive Engineer and an Assistant Executive Engineer were examined as DWs 1 to 4. The learned trial Judge, on appraisal of the evidence, as mentioned earlier, found the accused guilty. Consequently, they were convicted and sentenced. 6. I heard Advocate Sri.B.Raman Pillai, the learned counsel appearing for the 1st accused and Advocate Sri. Rajendran, the learned counsel appearing for the 2nd accused and Sri.I.V.Pramod, the learned Government Pleader. 7. Exts.P2, P4 and P6 are the bills involved in C.C.34/2000. Those bills are dated 18.4.1994, 8.3.1994 and Crl.A.No.158/2003 etc. - 9 - 1.3.1994 respectively. The amount covered by those bills are Rs.5,400/-, Rs.6,000/- and Rs.5,400/- respectively. Exts. P7, P8 and P9 dated 4.3.1994, 5.3.1994 and 2.3.1994 respectively are the bills involved in C.C.35/2000. The amount covered by those bills are Rs.3,300/-, Rs.6,000/- and Rs.4,800/- respectively. Exts.P10 and P11 bills dated 9.3.1994 and 11.3.1994 for Rs.3,000/- and Rs.4,000/- respectively are the bills involved in C.C.36/2000. Ext.P1(a) is the report of PW1 regarding Ext.P2. Exts.P1(b), P1(c), P1(d), P1(e), P1(f), P1(g) and P1(h) respectively are the notes of PW1 regarding Exts.P2, P4 and P6 to P11 bills. Exts.P3 and P5 are the Log books. Exts.P12 and P16 are the M Books. The corresponding entries in Exts.P3, P5, P12 and P13 were also proved by PW1. The payments in respect of Ext.P2 bill was made by a cheque, the counterfoil of which was marked as Ext.P17(a). The payments in respect of other bills were made along with certain other bills through another cheque, the counterfoil of which was marked as Ext.P18(a). Exts.P17(a) and P18(a) were proved by PW2, then Assistant Executive Engineer (Mechanical), National Highway, Sub Division, Alappuzha. Crl.A.No.158/2003 etc. - 10 - Exts.P2, P4 and P6 to P11 would show that in all the bills the certificate regarding execution of work was endorsed by the 1st accused. The certificates of execution of work made by the 1st accused were marked as Exts.P2(a), P4(a), P6(a), P7(a), P8 (a), P9(a), P10(a) and P11(a) respectively. In all the bills, late Afsal had endorsed check measurements. Of course, the certificates of work and the check measurements don't bear any date. It is also proved by the evidence of PW1 that the 1st accused had certified the execution of the work in the Measurement books, namely, Ext.P16 and P12. All the certification of works were identified and marked through PW1. As I mentioned earlier, the very consistent case of the accused is that the works covered by the above bills were executed by the 2nd accused and that the execution was duly certified by the 1st accused and thereafter payment order was passed by late Afsal after certifying that check measurements were done. The payments to the 2nd accused are also admitted. The very case of the prosecution is that the above works were not done and that in pursuance to the conspiracy hatched between the accused and late Afsal those bills were forged Crl.A.No.158/2003 etc. - 11 - and produced as if genuine documents and knowing that there was no execution of the works, the payments were made and thus the 2nd accused had undue pecuniary advantage and corresponding loss to the State. Therefore, the question that is germane is whether the works covered by the above bills were executed by the 2nd accused or not. 8. Exts.P3 and P5 are the Log books. Ext.P3(a) is the Log book entry relating to HMB-107. Ext.P5(a) is the entry in Ext.P5 log book relating to PF 1091/76. The very case of the prosecution is that HMB-107 failed to work from 9.4.1994 and thereafter, it is kept idle at Parippally, a work site of the National Highway. PF 1091/76 also failed to work and that was kept idle since November, 1993 at N Tech Workshop at Pattanakkad. According to the prosecution, no repairs were done on these machines after it stopped working and that all the bills in dispute were forged as if the above machines were repaired after the above machines failed to work. PF 1091/76 was kept idle at the workshop premises of N Tech, Pattanakkad till 12.1.1995, when it was removed to the garage of the National Highway at Kalavoor. Crl.A.No.158/2003 etc. - 12 - 9. In support of the case of the prosecution that no work as alleged was executed, the prosecution would rely upon the testimony of PW1. PW1 had deposed that when he inspected HMB-107 (Page 7 of the readable copy of the deposition) it was realised that the work mentioned in Ext.P2 was not executed and as per the Log book, the machine was lying idle at the work site since 9.4.1994, whereas Ext.P2 bill is dated 18.4.1994. As per Ext.P2, the work that was done on HMB-107 is patchwork to metal collection portion with 10 kg sheet 300 Dm2 at the rate of Rs.80 per Dm2. In Ext.P1 at Ext.P1(a), PW1 had noted the remarks. “The work is not seen done. The metal collection portion is in 'as is where is' condition, after the work on 9.4.1994. No patch work is done and the facilities available at the site are not sufficient to carryout the work. The watchman at the site has informed that the motor had been taken away by the Assistant Engineer about two months back only.” PW1 had reiterated the above remarks in the box. Crl.A.No.158/2003 etc. - 13 - 10. As per Ext.P4 dated 8.3.1994, main drive chain sprocket two side welding and shaping two numbers at the rate of 3,000 each (Rs.6000/-). PW1 had deposed that the sprockets were not even dismantled for repairs, no reconditioning was done and teeth end were as thin as knife edge. Bill for assembling and dismantling was not seen. Ext.P1 (b) is the report relating to that work. The remarks noted in Ext.P1(b) is exactly identical to the evidence of PW1 mentioned above. 11. As per Ext.P6 dated 1.3.1994, Augur screw shaft welding and shaping to the nearest profile 12 Nos. at the rate of Rs.450/- per set were done. Total amount is Rs.5400/-. PW1 had deposed that on inspection he noticed that Augur screws were in worn out and damaged condition. No reconditioning work was done and that was reported in Ext.P1 at P1(c). Ext.P1(c) tallies with the evidence of PW1. 12. As per Ext.P7 bill dated 4.3.1994, Auger driving sprockets teeth welding and shaping to the nearest profile Crl.A.No.158/2003 etc. - 14 - was done. The amount claimed is Rs.3600/-. PW1 had deposed that on inspection, it was found that the sprockets teeth were worn out and no reconditioning work was done. The sprockets were not even dismantled from the plant. The bill for dismantling and refitting was not done and that for the said work the sprockets should have been dismantled. Ext.P1 (d) is the report relating to that work. Ext.P1(d) is as deposed by PW1. 13. As per Ext.P8 dated 5.3.1994, the work done is conveyor reconditioning by fabricating chain links, side plate correcting plates for each chain one set at the rate of Rs.250/- for 24 Nos. Total amount covered is Rs.6,000/-. Regarding that, PW1 had deposed that no reconditioning work was done with the conveyor. Conveyor chain is not even dismantled from the plant. Even the bitumen on the chain is not seen removed and cleaned. Bill for dismantling and reassembling was not seen. The evidence of PW1 is identical to Ext.P1(e) report. 14. As per Ext.P9 dated 2.3.1994, four Nos. of Hydrolic Crl.A.No.158/2003 etc. - 15 - hoses were provided, one at the rate of Rs.1,200/- each. Total amount is Rs.4,800/-. Regarding that, PW1 had deposed that new Hydrolic hoses were not seen fitted. Saraswathy Engineering Works (of which 2nd accused is the owner) is only a workshop and not a dealer. The firm has to procure the item from some other dealer and hence they must be having the bill of the dealer. Why that was not purchased direct from the dealer was not known. That evidence is referring to Ext.P1(f). 15. As per Ext.P10 dated 9.3.1994, two Nos. of Augur bearings at the rate of Rs.1,500/- each for a total sum of Rs.3,000/- were paid. Referring to Ext.P10 and Ext.P1(g), PW1 had deposed that Augur was in completely dismantled condition. The bearing number is conveniently omitted in the bill. The rate was very high. The bill from the dealer was not produced. In Ext.P1(g) it was further noted that the Executive Engineer and the Assistant Engineer must have purchased bearings from the dealers. If bearings were actually purchased, M/s.Saraswathy Engineering might be having the bill of the firm from which the purchases made. Crl.A.No.158/2003 etc. - 16 - 16. As per Ext.P11 dated 11.3.1994 conveyor driving chain sprocket welding and shaping 2 Nos. were done at the rate of Rs.2,000/- each. Total amount claimed was Rs.4,000/-. Referring to Exts.P11 and P1(h) report, PW1 had deposed that reconditioning of the sprocket was not done. The sprockets were not even dismantled from the plant and is covered with bitumen. Bill for the dismantling was also not seen. 17. PW1 had also deposed that on 1.11.1993 Paver was shifted to N Tech workshop for repairs and on 13.1.1995 it was shifted from the workshop to the Kalavoor garage and that Ext.P5 Log book would contain such entries. Ext.P5(a) is the relevant entry. It was further deposed that in all the bills at the reverse side, the 1st accused had certified that the work was carried out satisfactorily. It was verified and accepted. In all the bills, late Afsal had also certified check measurements. It was also deposed that the execution of the work covered by the above bills were also noted in the M Book and signed by Crl.A.No.158/2003 etc. - 17 - the 1st accused. 18. PW2 is the Assistant Executive Engineer. He was examined to prove Exts. P13, P14, P15, P16, P17 and P18. PW3 was the Joint Secretary attached to Home Department. He was examined to prove Ext.P19 order according sanction to prosecute the 1st accused and the other accused, who are involved in the other cases. PW4 is an Inspector attached to the Vigilance and Anti Corruption Bureau. He had questioned certain witnesses and seized Ext.P19 sanction order for which Ext.P20 Inventory was prepared. PW5 is an Assistant Engineer, who had assisted the investigating officer. He had also proved Ext.P22, a letter requesting for vigilance investigation and Ext.P23 proceedings whereby the 1st accused was appointed as Assistant Engineer, National Highway, Sub Division, Alappuzha. PW6 was examined as a worker in the workshop owned by the 2nd accused. He would depose that Exts.P2, P4 and P6 to P11 bills were written by the 2nd accused. He had also proved Exts.P25 and P26 agreements which would prove that he along with the 2nd Crl.A.No.158/2003 etc. - 18 - accused was running the workshop 'Saraswathy Engineers' and that the 2nd accused was the person responsible for the works in the workshop. PW7 had proved Ext.P27 First Information Report. PW8 had deposed about the process of investigation. PW9 had deposed that he verified the records and submitted the charge sheet. 19. The evidence of the prosecution being the above, the question that remains is whether the evidence of PW1 is reliable to come to a conclusion that the works covered by Exts.P2, P4 and P6 to P11 were not executed and the payments were made without doing the work. I had earlier mentioned that the 1st accused had admitted that the amounts claimed in the above bills were paid through cheques, the counterfoils of which were marked as Exts.P17(a) and P18(a). The 2nd accused had admitted that he had received the payments of the amount covered by the above bills as per the cheques. Exts.P17(a) and P18(a) would contain the signature of the 2nd accused acknowledging the receipt of the cheques. According to the Crl.A.No.158/2003 etc. - 19 - learned counsel for the 1st accused, PW1 has absolutely no idea about the above two machines and he had seen the above machines for the first time in his life and that the very case of the prosecution is that PW1 had inspected the above machines without the assistance of any officers and without notice to the accused. It was also submitted that the inspection, if any, done was only peripheral and such an inspection would not disclose the execution of the work and that there is no mahazar prepared by the investigating officer and no photographs were taken. Though there would be history books relating to the above machines, for the best reason known to the prosecution, the history books were not at all produced. According to the learned counsel, no sanctity can be given to Ext.P1 or to the evidence of PW1 to come to a conclusion regarding the guilt of the accused. It was also submitted that the works executed were within the financial powers of the Assistant Executive Engineer, who ordered the execution of the work and for the best reason known to the prosecution, the order issued by the 1st accused was not produced. 20. After reading out the evidence of PW1 and Ext.P1, Crl.A.No.158/2003 etc. - 20 - the learned counsel further argued that PW1 was not in a position to say as to how many Augur screws or bearings in the above machines and instead of the Augur screws it was recorded in Ext.P1(a) series as Anger screws. According to the learned counsel, the misreading of the Augur screws as Anger screws itself is sufficient enough to reject the evidence of PW1. 21. Learned counsel for the first accused, relying upon a decision reported in C.Chenga Reddy and others v. State of A.P ( (1996) SCC(Crl) 1205), argued that the mere fact that the officers failed to comply the provisions of the manual, administrative lapses in the matter in preparing the estimate, nomination of contractor, drafting agreement with contractors, correction in the estimate etc. would not be a reason for arriving at the conclusion of guilt. It was further submitted that in according sanction to prosecute the first accused there was total application of mind and so, no reliance can be given to Exhibit P19 sanction order. Hence, first accused is entitled to an order of acquittal. He also made reliance on a decision reported in State of Karnataka v. Ameer Jan (AIR 2008 SC Crl.A.No.158/2003 etc. - 21 - 108). 22. Learned counsel for the second accused submitted that work order has been issued to the second accused and he did the work