IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 15TH JUNE 2009 / 25TH JYAISHTA 1931 Crl.Rev.Pet.No. 229 of 2009() ----------------------------- CRL.M.P.NO.192/2007 IN CC.15/2002 of ENQUIRY COMMISSIONER & SPECIAL JUDGE, THIRUVANANTHAPURAM .................... REVN. PETITIONER(S): PETITIONER-2ND ACCUSED ------------------------------------------- T.O.ABRAHAM,S/O LATE KURUVILA ONNOOTTAN, THOTTATHIL, PUTHENPURA,URUMBIKUNNEL,THURUTHIKKADU, TJORIVALLA, PATHANAMTHITTA. BY ADV. SRI.V.N.ACHUTHA KURUP, SENIOR ADVOCATE SRI.B.S.SWATHY KUMAR SRI.BINDU SREEKUMAR RESPONDENT(S): COMPLAINANT -------------------------- STATE OF KERALA,REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. PUBLIC PROSECUTOR SHRI P.N.SUKUMARAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 15/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.229 of 2009 -------------------------------------- Dated this the 15th day of June, 2009. ORDER This revision is in challenge of order dated 25.11.2008 in Crl.M.P.No.192 of 2007 in C.C.No.15 of 2002 of court of learned Enquiry Commissioner and Special Judge, Thiruvananthapuram. Petitioner who is accused No.2 pleaded that he be discharged under Section 239 of the Code of Criminal Procedure (for short, “the Code”). That petition did not find favour with the learned Special Judge. Hence this revision. 2. I heard senior counsel for petitioner and Public Prosecutor who appeared for respondent. Accused No.1 was the Superintending Engineer of the Kallada project for the period from 6.7.1990 to 28.2.1991. Petitioner/accused was the contractor for the work relating to K.I. & TCDP. Accused Nos.3 and 4 are officers subordinate to accused No.1 in the Public Works Department. Case is that on the eve of retirement of accused No.1 on 28.1.1991, there was a criminal conspiracy between accused and petitioner to make unlawful gain by illegal means misusing certain clauses of LCB specifications. There was some sort of negotiation between petitioner and accused No.1 as to the rates on 21.2.1991 regarding five items of work entrusted to the petitioner as per the agreement. Following that, to facilitate payments not otherwise due to the petitioner, supplemental agreement was executed on 25.2.1991 ignoring that Crl.R.P.No.229/2009 2 petitioner was not eligible to get any such enhancement. Accordingly, wrongful gain was made by petitioner and accused Nos.1, 3 and 4 and consequent loss to the Government. Petitioner and accused Nos.1, 3 and 4 are therefore charged for offences punishable under Sections 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act (for short, “the Act”) and Section 120B of the Indian Penal Code. 3. Learned senior counsel submitted that there was nothing illegal in petitioner requesting for and accused No.1 sanctioning excess payment which were all done in accordance with the terms and conditions of the agreement between the parties. Learned counsel submitted that in respect of four items, petitioner had done excess work and in respect of one item he had done extra work. Accordingly he made application before accused No.1 for payment for such excess/extra work. Request made by the petitioner was referred to the subordinate officers and appropriate reports were obtained by accused No.1 before supplemental agreement was executed. Learned counsel contends that as per the prosecution case, conspiracy was made at three different levels, between petitioner and accused No.1, then between petitioner and accused Nos.1 and 3 and then again between petitioner and accused No.4. Further contention is that respondent has no case that petitioner had not done excess/extra work. There is also no case that petitioner was compensated for the said excess/extra work he did. According to the learned counsel, it is only for the reason that supplemental agreement was executed on the eve of retirement Crl.R.P.No.229/2009 3 of accused No.1 that case has been registered against the petitioner and others. Therefore, learned counsel contends that petitioner is entitled to discharge. Learned Public Prosecutor submitted that supplemental agreement was executed to facilitate extra/excess payment which otherwise petitioner was not entitled or eligible. Learned Public Prosecutor also submitted that the excess work allegedly done by the petitioner was not really an excess work but it was a part of the agreement already entered into. It is also submitted by Public Prosecutor that in respect of construction of flume canal with tie beam accused No.1 negotiated with petitioner on 27.2.1991, ie., just on the previous day of his superannuation and retirement and allowed a rate of Rs.11,750/- for total quantity of 100 tones while actually petitioner was eligible to get only Rs.7,500/-. To facilitate that accused No.1 ignored the notes put up by his subordinates. It is stated that in connection with th excess work petitioner allegedly did and which according to him enabled him to get excess payment, witness No.9 has stated that petitioner was bound to do that work even as per the original agreement. In that way a loss of Rs.7,01,380/- was caused to the Government. The total loss thus caused to the Government is Rs.16,04,908.36. 4. At this stage, what is required to be considered is only whether there is ground to presume that petitioner has committed the offence. A discharge is possible only if the charge is groundless. It has been held time and again that for framing charge it is sufficient that strong suspicion regarding the commission of the offence is made out. Learned Special Judge referred to Crl.R.P.No.229/2009 4 the documents produced before him and stated that it was against the office notes put up by the subordinate officials that accused No.1 awarded payments for the alleged excess/extra work. Learned Special Judge has also stated that personal assistant to accused No.1 had put up a note that the Executive Engineer has to be instructed to carry out the additional work through the present agency and the matter has to be reported to the Chief Engineer. Further observation made by the learned Special Judge is that records produced before the court would reveal that for road crossing, bed width was increased and CC 1:3:6 making up etc. were treated as extra items and accused No.1 passed such an order and directed petitioner to furnish the rates. The same were not forwarded through the officials of the department but was seen directly given by petitioner to accused No.1 and accordingly dealt with. So far as execution of supplemental agreement is concerned, it is observed that in the negotiation statement, the estimate rate was not noted and it could not be found out as to how accused No.1 had fixed the rate and an excess payment of Rs.3,01,945/- was allowed by accused No.1 in favour of petitioner. There are also facts and circumstances stated by learned Special Judge which according to the Special Judge was sufficient to frame charge against the petitioner. On going through the order under challenge and hearing learned senior counsel for petitioner and Prosecutor appearing for respondent I am not inclined to think the learned Special Judge was not correct in observing as to the availability of materials for framing charge against the petitioner. Ofcourse, the observations and findings made by learned Special Judge are only for the purpose of framing charge. I Crl.R.P.No.229/2009 5 do not find reason to interfere. However I make it clear that the observations and findings made by learned Special Judge will be limited for the purpose of framing charge against the petitioner. With the above observation, this revision is dismissed. Crl.M.A.No.680 of 2009 will stand dismissed. THOMAS P.JOSEPH, Judge. cks