IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 23RD SEPTEMBER 2009 / 1ST ASWINA 1931 CRL.REV.PET.NO. 1683 OF 2009() ------------------------------------------- AGAINST THE ORDER IN CMP.277/2006 IN CC.56/2004 OF ENQUIRY COMMR. & SPL.JUDGE, KOZHIKODE .................... REVN. PETITIONER(S) – ACCUSED NO.2: ----------------------------------------------------- T.BABURAJAN, S/O. THOMAS, AGED 69, THOTTATHIL HOUSE, CHENGAMANADU VILLAGE, NEDUMBASSARY P.O. BY ADV. SRI.B.RAMAN PILLAI SRI.R.ANIL SRI.ANIL K.MOHAMMED SRI.SUJESH MENON V.B. SRI.JOSEPH P.ALEX SRI.SHYAM ARAVIND SRI.T.ANIL KUMAR RESPONDENT(S) - COMPLAINANT: -------------------------------------------- STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, AT ERNAKULAM. BY PUBLIC PROSECUTOR SHRI P.N. SUKUMARAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 25.8.2009 ALONG WITH CRRP NOS. 1779 & 1780 OF 2009, THE COURT ON 23.9.2009 PASSED FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO.1683 of 2009, CRL.R.P. NO.1779 of 2009 AND CRL.R.P. NO.1780 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 23rd day of September, 2009 O R D E R -------------- Accused Nos.2, 3 and 5 to 9 in C.C. No.56 of 2004 of the court of Enquiry Commissioner and Special Judge, Kozhikode (for short, “the learned Special Judge”) are the petitioners in these revision petitions. They along with a few others are facing prosecution for offences punishable under Section 13(2) read with 13(1)(c) and (d) of the Prevention of Corruption Act and Sections 465, 468, 471, 420 and 120B of the Indian Penal Code. They pleaded for discharge which learned Special Judge by the impugned order refused. Hence these revisions. 2. Accused Nos.1 to 5 and 8 are Engineers connected with the work of Karapuzha River Project (for short, “the Project”) during the relevant periods. Case is that they while holding office as Engineers and working as such in the Project conspired and colluded with accused Nos.6, 7 and 9, contractors for obtaining the work of timbering/shoring in favour of accused Nos.6, 7 and 9 and without doing that work, forged the measurement book (M.Book) by making CRL.RP.1683, 1779 & 1780 OF 2009 -: 2 :- false entries with reference to the measurement of the work which was actually not done, cheated the Government and made unlawful gain for themselves and thereby committed the offences. Accused No.1 was connected with the Project work from 25.2.1994 to 8.11.1996; accused No.2 from 9.1.1991 to 29.11.1993; accused No.3 from 14.2.1994 to 12.2.1997; accused No.4 from 3.1.1994 to 30.6.1995; accused No.5 from 1.4.1992 to 17.11.1998 and accused No.8 from 29.11.1993 to 25.2.1994. It is contended by learned counsel for accused that records do not even prima facie show that any offence is committed by these accused. Learned counsel contended that as per PWD manual and Kerala Standard Specifications timbering/shoring has to be done for trenches beyond the depth of two metres to prevent sliding of earth. It is also submitted by learned counsel that page 89 of the file produced by the prosecution would show that datas of timbering/shoring work given. Further contention is that learned Special Judge has not referred to the relevant records while holding that there is sufficient ground to proceed against these accused. At any rate so far as accused No.2, Executive Engineer is concerned he has only forwarded the estimate proposal for timbering/shoring work to his superior Officer, the Superintending Engineer and hence he cannot be prosecuted for any CRL.RP.1683, 1779 & 1780 OF 2009 -: 3 :- of the offences. Learned counsel submitted that court cannot act as a Post Office and has to peruse records before concluding that there is sufficient ground to proceed against the accused. Learned Prosecutor appearing for respondent contend that there is sufficient materials on record to show that there is sufficient ground to proceed against the accused. 3. Charge is that timbering/shoring work was unnecessary and actually not done, but records were manipulated to make it appear that such work was done and the accused thus made unlawful gain to themselves, unlawful loss to the Government and cheated the Government. Now what is required to be considered is whether there is sufficient ground to proceed against these accused. 4. Relevant decisions on the point say that at the stage of framing charge court is not expected to go deep into the probative value or acceptability of the materials produced. Instead court has to form a presumptive opinion as to the existence of factual ingredients constituting the offences alleged (see Onkar Nath Mishra and Others v. State - (2008) 1 SCC (Cri.) 507). At the time of framing charge it is sufficient that a grave suspicion is made out against the accused. I shall consider whether such materials are available on CRL.RP.1683, 1779 & 1780 OF 2009 -: 4 :- record to form a presumptive opinion that there is ground to proceed against these accused. 5. Accused No.1 was the Executive Engineer connected with the Project. He is stated to have executed the agreement with the contractors concerned for the impugned work. Accused No.2 is the Executive Engineer who along with his own report forwarded the estimate proposal for the impugned work. Accused No.3 is the Assistant Executive Engineer who is said to have checked the measurement. Accused No.5 is the Chief Engineer who approved the estimate and issued technical sanction (after quotations were invited). Accused No.8 is the Assistant Engineer who signed the quotation notice. It is not disputed that sealed quotations for the work was invited on 18.2.1994 even before granting technical sanction for the work on 19.2.1994. Official witnesses questioned by the Vigilance Officials have opined that quotations should have been invited only after obtaining technical sanction. It is not proper to have invited quotations even before technical sanction was obtained. 6. C.W.1 is the Assistant Engineer of P.W.D. who inspected the site along with the Deputy Superintendent of Police (Vig.) and others from chainage 184m to 219m on the right flank. After perusing the relevant file he sated that the file revealed that after calling tender CRL.RP.1683, 1779 & 1780 OF 2009 -: 5 :- for the work Executive Engineer suo moto initiated a proposal to arrange the work departmentally on piece work basis 35% above the scheduled rate and accordingly quotations were invited on 18.2.1994. He also stated that the base width of the excavation trenches is about 30 metres and sides of trenches are sloped at 45o angles. According to the guidelines and specifications for timbering/shoring work the item of shoring work could not be paid in the present case. He stated that it is difficult to convince how bottom planks would support on both sides which is at 1:1 slope. If plank shoring is provided it would be the earth at slope that would be supporting the plank and not otherwise. As per the Kerala Standard Specifications timbering/shoring for trenches is to be provided only for sides of trenches that are vulnerable for collapse and sides of trenches are to be prevented from collapsing by stepping. C.W.1 found that the provision for timbering/shoring for a surface which is not expected to collapse is superfluous and absolutely not required and hence provision for timbering/shoring was considered unnecessary in this case. C.W.1 has also given a detailed report to that effect. In that report he has stated that the details observed during verification do not indicate any change in levels when compared to the actuals at site. It may be remembered that complaint was received and investigated CRL.RP.1683, 1779 & 1780 OF 2009 -: 6 :- much after the entire work was completed and hence there was no possibility of physically verifying whether shoring/timbering work was actually done. That could be decided only from the facts and circumstances of the case. 7. C.W.2 is also an Engineer who had been with C.W1 for the purpose of excavation. He was also of the opinion that on inspection it was revealed that timbering/shoring work was not necessary. 8. C.W.4 is Executive Engineer of the Project. He, after referring to the files stated that the Tender Committee had recommended that shoring working has to be completed before monsoon of 1994. But the file does not show that work was done before monsoon. It is seen that no action was taken by the Engineers concerned against the contractor for non-completion of the work. 9. C.W.11 is the Assistant Executive Engineer of the P.W.D. building sub division. He examined the relevant file and stated that it related to the work on foundation excavation on the right flank from 184mt. to 219 mt. But the datas for timbering/shoring work are not seen mentioned (learned counsel for accused pointed out that in page 89 of the file datas for the shoring work are given). I have found in pages 89 and 90 of the file that datas of timbering/shoring work are given but I am unable to say that it is in connection with the work of CRL.RP.1683, 1779 & 1780 OF 2009 -: 7 :- the right flank. It is stated by C.W.11 that what is stated in page 89 is the sub datas of foundation excavation work and that sub items (a) to (c) did not show that datas for shoring work were included. C.W.11 has also stated after referring to the file that the rate of foundation excavation work was fixed (page 105 of the file) as per the soil boring chart and as per that chart classification of the soil is made as ordinary soil, hard soil, ordinary rock, etc. File stated that nature of the soil was identified after soil testing. There is specification as per PWD manual (el. 4:1:2) for trenching beyond the depth of two metres and shoring work is needed. Estimate for the timbering/shoring work was prepared as per 1992 schedule. He stated that estimate proposal will be sent to the Tender Committee only after getting technical sanction (unlike in these cases where estimate was prepared and even tenders were invited before obtaining technical sanction). PWD manual does not show that timbering/shoring work is incidental to the main work. In these cases technical sanction was obtained only on 19.2.1994 after the Tender Committee approved the estimate. That is not the proper course or procedure. 10. C.W.14 is the Chief Engineer. He referred to the relevant file and stated that (in page 55 of the file) timbering/shoring work is shown as a separate item and rate of Rs.4546 per meter square is CRL.RP.1683, 1779 & 1780 OF 2009 -: 8 :- fixed. For any work proposal will be sent to the Tender Committee only after obtaining technical sanction. In this case technical sanction was accorded on 19.2.1994. 11. Two other witnesses relied on by the prosecution are C.Ws.3 and 7. C.W.3 is a resident near the Project area and sated that he was engaged in the work of cement loading in the Project area during 1979-98. He was working on the left flank adjacent to the Dam. He was very much there during the time of earth work and used to watch the work on the right flank. He would say that during 1995-96 he had not seen any sliding of earth from the sides. He has never seen any timbering/shoring work done to prevent soil erosion. Concrete work was being done there. 12. C.W.7 is also a resident near the Project area. He stated that he used to graze his cattle in the Project area every day during 1996-97 when the work was in progress. He used to watch the progress of work. He would say that about 1.80 acres of land belonging to him had been acquired for the Project. There was concrete work being done at very depth of the trench but he had never seen timbering/shoring work to prevent soil erosion. 13. Learned counsel for the accused contends from the relevant provisions of the P.W.D manual and Kerala Standard CRL.RP.1683, 1779 & 1780 OF 2009 -: 9 :- Specifications that in any case trenching beyond the depth of 2 metres timbering/shoring is necessary to prevent sliding and consequent danger. Learned counsel contends that it is in accordance with that stipulation that the work was done. Learned counsel submitted that senior officials of the department are being prosecuted for the work they have bona fide carried out in public interest. Learned counsel contends that statements of C.Ws.3 and 7 could not be taken for face value to prosecute senior officials of the department. 14. The circumstances that emerged from the materials on record are that according to C.Ws.1 and 2, Engineers of PWD department timbering/shoring was not essential in this case. They also stated that considering the slope at which the trenches were made, timbering/shoring work was not essential as there was no possibility of soil erosion. They have given reasons for concluding so. Another fact which is not disputed is that the estimate proposal should have been prepared only after technical sanction was obtained but in this case estimate was prepared, forwarded to the Tender Committee and the estimate was approved and even tender notice was issued before technical sanction was obtained. According to the learned counsel that is only a procedural irregularity. But the fact that CRL.RP.1683, 1779 & 1780 OF 2009 -: 10 :- technical sanction was obtained only later is to be taken into account along with other facts and circumstances relied on by the prosecution. It is stated in the evidence of C.W.11 that datas for the timbering/shoring on the right flank is not contained in the file (I referred to page 89 of the file where there is some reference to the datas of timbering/shoring work). There is also statements of C.Ws.3 and 7 who had occasion to be at the Project area during the relevant time that no timbering/shoring work was actually done. 15. At this stage court is not required to consider the acceptability or probative value of the statements of C.Ws.3 and 7. That is a matter to be decided after examination of the witnesses. Now it is not as if there is no materials to prima facie show that timbering/shoring work was not done. 16. So far as Accused No.2 is concerned it is argued that he has only forwarded the estimate proposal to his Superior Officer and he has worked at the Project area only for a short period. I have gone through the file and find that it is not as if accused No.2 merely forwarded the estimate proposal. It is seen from the file that he has sent his own report while forwarding the estimate proposal. 17. I have gone through the records and I am unable to accept the contention that there is no sufficient ground to proceed against the CRL.RP.1683, 1779 & 1780 OF 2009 -: 11 :- accused. As I stated above, it is sufficient that a strong suspicion is made out against these accused to frame charge. As such contention of learned counsel that learned Special Judge went wrong in framing charge against petitioners cannot be accepted. There is no merit in these revisions and they are liable to be dismissed. Revision Petitions are dismissed. THOMAS P.JOSEPH, JUDGE. vsv