IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 24TH JANUARY 2011 / 4TH MAGHA 1932 CRL.A.No. 117 of 2002 ------------------------------------ CC.25/1999 of ENQUIRY COMMR. & SPL. JUDGE, THRISSUR .................... APPELLANT/2ND ACCUSED: K.T.JOSEPH, RTD. EXDECUTIVE OFFICER, VANNAPURAM PANCHAYAT, KOCHUPARAMBIL HOUSE, ELAKODINJI, SOUTH PAMPADY, P.O.KOTTAYAM. BY ADV. SRI.M.V.BOSE SRI.CHERIAN VARGHESE SRI.VINOD MADHAVAN SMT.NISHA BOSE RESPONDENTS/COMPLAINANT: 1. SUPERINTENDENT OF POLICE, V.A.C.B., IDUKKI. 2. PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.B.VINOD THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 24/01/2011 ALONG WITH CRA NO.120 OF 2002, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.Sasidharan Nambiar, J. --------------------------- Crl.A.Nos.117 & 120 of 2002 --------------------------- JUDGMENT Accused 1, 3 and 4 in C.C.No.25/1999 on the file of Special Judge (Vigilance), Thrissur are the appellants in Crl.A.No.120/2002. Second accused therein is the appellant in Crl.A.No.117/2002. All the accused were convicted and sentenced for the offences under Sections 13(1)(c) and 13(1)(d) read with Section 13(2) of Prevention of Corruption Act and Sections 409, 468, 471, 477A and 120B of Indian Penal Code. Charge against the appellants was that while first appellant was the President of the Panchayat, second appellant, Executive Officer and appellants 3 and 4, Ward members and they were functioning as the Convener and Members of the committee formed by Vannappuram Panchayat to execute work, out of Rs.84,000/- received for construction of a play ground at Pattayakkudy under Eleven Point Programme, pursuant to the conspiracy CRA 117&120/02 2 between them, they misappropriated Rs.30,564/- and also forged documents and falsified the accounts and thereby committed the offences. 2. All the accused pleaded not guilty. Prosecution examined seventeen witnesses and marked thirty exhibits. Exhibits X1 and X2 were also marked. After closing the prosecution evidence, appellants were questioned under Section 313 of Code of Criminal Procedure. When they were called upon to adduce evidence, at their instance, a retired Engineer was appointed to assess the work executed. He submitted Exhibit X1 report. He was examined as DW1 on their side, apart from DWs 2 and 3. Exhibit D1 statement was also marked. 3. On the evidence, learned Special Judge found all the accused guilty and convicted and sentenced them. Appellants would contend that learned Special Judge did not properly appreciate the evidence and though reliance was placed on the evidence of PWs 1, 2 and 10, there is no evidence as to the exact CRA 117&120/02 3 quantum of work executed and there is also no evidence to prove that any amount was misappropriated. It was pointed out that Exhibit P18 file contains the relevant Government Orders which provide for execution of works under Eleven Point Programme by paying charges applicable to local areas and in such circumstances, based on 1986 PWD Schedule, quantum of work should not have been valued or assessed and based on that assessment, there cannot be a finding that the difference in the amount was misappropriated. It was pointed out that entire case of misappropriation was built up based on the fact that stones used for constructing the retaining wall were taken from the rocks which were blasted from the property, even though the estimate provide for using stones brought from outside for constructing the retaining wall providing separate rate for that work. It was also pointed out that when estimate provide for blasting of rocks of CRA 117&120/02 4 115m3, PWs 1, 2 and 10 wrongly estimated the quantity of rocks blasted as 225.8m3 and the subsequent estimate prepared for completing the balance work show that two rocks of the four rocks, shown in the original estimate, are yet to be blasted and therefore, the stones which could have been obtained by blasting the rocks would be less than 115m3 as originally assessed and therefore, based on the assessment, the conviction is unsustainable. 4. Learned Public Prosecutor pointed out that excluding the cost of construction of the Stadium, which was never constructed, the estimate was Rs.94,954/- and Rs.84,000/- has already been admittedly received by the appellants. It is pointed out that Exhibit P18 file shows that balance work left by the appellants was estimated and the estimate of that work was Rs.40,000/- and if so, the total amount would be Rs.84,000/- already spent plus Rs.40,000/- to be spent for the CRA 117&120/02 5 remaining work and it far exceeds the estimate of Rs.94,954/- and therefore, it is clear that there is misappropriation. Learned Public Prosecutor also pointed out that Exhibit P20 file, proved through PW10, shows that actual measurement of the rocks to be blasted was taken and noted as Item No.4 in the detailed estimate prepared at that time, seen at Page No.5 of the file and as per that estimate, there were four boulder stones, having a total measurement of 231m3 and though it was reduced to 115m3, based on which final estimate was approved, evidence of PWs 1 and 10 establish that after appellants left the work, when the property was inspected to measure out the work executed, 60m3 scattered blasted rocks were found after using the remaining part for constructing a portion of the retaining wall and from the measurement of the retaining wall, it is clear that for its construction, stones obtained from the blasted rocks, namely, 225.8m3, were used and it correspond CRA 117&120/02 6 to the measurement of the rocks to be blasted as noted in Exhibit P20 and in such circumstances, cost of the work executed, as assessed by PW10 by calculating the cost at 47.85/m3 for the work of DR masonry for retaining wall, though PW3 assessed it at 211.15/m3 on the presumption that work for the retaining wall was carried out using stones brought from outside, is correct and if so, it is clear that the work actually executed was only Rs.53,710/- as assessed by PW1 and therefore, the finding that balance out of Rs.84,000/- was misappropriated is perfectly correct. 5. Exhibit P3 is the file maintained by PWD regarding execution of the work, including the estimate, verification of execution of the work made on the request of the office bearers elected subsequently and the estimate of the cost of the work executed. Exhibit P19 is the file maintained by the Panchayat regarding the said work. Exhibit P20 is the file maintained by PWD showing the CRA 117&120/02 7 estimate and further assessment made by PW10 regarding the said work. Exhibit P6 is the book issued to Assistant Engineer, Local Work Section, Thodupuzha, wherein, details of the work were noted. Exhibit P19 shows that based on Exhibit P19 (f) resolution to construct a play ground in the property gifted by Kairali Arts and Sports Club to the Panchayat under Exhibit P19(e) agreement, Panchayat decided to construct a play ground. Exhibit P19(a) shows that on 28.12.1988 administrative sanction was granted for carrying out the work at an estimated cost of Rs.1,10,000/-. The estimate so approved provide for Rs.94,954/- for site levelling, filling up and constructing retaining wall as provided in Appendix-A, Rs.11,637/- for construction of a stage as provided in Appendix-B, Rs.500/- for excess cost of cement and Rs.2,909/- for unforeseen items, thus, making a total of Rs.1,10,000/-. Out of the works provided in Appendix-A, Rs.10,168/- is for excavation in all CRA 117&120/02 8 classes of soil, except hard and medium rock, which require blasting, calculated at the rate of Rs.184.87/10m3 for 550m3. Second item is Rs.2,528/-, being the cost of excavation in all classes of soil, except hard and medium rocks, which require blasting and using the spoil for filling under the basement at the rate of Rs.158/10m3 for 160m3. Item No.3 is Rs.6,209/- for blasting 115m3 hard rock (measured in solid), conveying blasted rock and stacking for measurements at the rate of Rs.539.99/10m3. Fourth item is construction of D.R. masonry for retaining wall of 177m3, at the rate of Rs.211.16/m3, namely Rs.37,375/-. Fifth item is R.R. in C.M. 1:8 for the top course of retaining wall including painting the exposed faces, during the course of construction, namely Rs.5,447/-, estimated at Rs.363.11/m3 for 15m3. Sixth item is plastering C.M. 1:4 15mm thick one coat floated hard and trowelled smooth for top of retaining wall at the rate of Rs.194.50/m2 for 50m2, namely, CRA 117&120/02 9 Rs.973/-. Seventh item is filling the low lying portion with contractors own earth and conveyed with all leads and lifts involved, including filling to profile and level as per the instructions of departmental officers including consolidating by stone roller in 15cm layers etc. at the rate of Rs.47.85/m3 for 150m3, namely, Rs.7,178/-. Last item is bailing out water using 5 HP engine and pump set etc. complete as per specification at the rate of Rs.153.63/day for five days, namely, Rs.768/-. Thus, Rs.94,954/- was worked out in the estimate. 6. Exhibit P18, the file maintained by Vannappuram Panchayat, shows the details of the works carried out under Eleven Point Programme. Decision of the District Panchayat dated 29.6.1988 is seen at Page No.11. It shows the decision taken in the conference of Panchayat Inspectors held on 19.5.1988. Relevant portion of the minutes extracted therein provides for construction of CRA 117&120/02 10 three or four play grounds in a Panchayat providing that each play ground must have an extent of not less than fifty cents and during that financial year, at least one play ground should be constructed by the Panchayat and work is to be executed under Eleven Point Programme. Page No.26 of Exhibit P18 file shows Government Order (G.O. (Rt)No.3097/88/LAD.) dated 16.9.1988 for speedy execution of the work under Eleven Point Progamme. The Government order shows that Government ordered that in order to ensure speedy execution of the works under Eleven Point Programme and to achieve the targets in time, all Panchayats are permitted to execute construction works under Eleven Point Programme costing up to Rupees Two lakhs, directly by the Panchayat themselves without calling for tenders and engaging Contractors. However, the works should be executed under the technical guidance, advice and supervision of the Buildings and Local Works branch of Public Works Department. CRA 117&120/02 11 It further provides that Panchayat Committees may, if necessary, entrust execution of such works to Sub-committees of the Panchayats, consisting of the Panchayat President and at least two other members of the Panchayats, with the Panchayat Executive Officer as Convener, providing that the arrangement will remain in force till 31.3.1989. Page No.64 of Exhibit P18 file shows the subsequent Government Order (G.O.(Rt)No.4050/88/LAD.) dated 6.12.1988. By earlier Government Order dated 16.9.1988, Government ordered that while executing works under Eleven Point Programme directly by the Panchayats, cost of construction materials, transportation and labour will be paid at the rate prevailing in the local area. It shows that in the review meeting of the Eleven Point Programme held on 23.11.1988, the District Panchayat Officers have pointed out that the rates of materials, transportation and labour prevailing in the local area would be more than the rates provided in the estimate and the result would CRA 117&120/02 12 be excess expenditure over the estimate. It also shows that Joint Director of Pancyats (Development) therefore requested in his note, which is read as third paper in the Government Order, that in respect of the works under the Eleven Point Programme ordered to be executed directly by the Panchayat Committees/Sub Committees, the excess expenditure over the estimate may be sanctioned. Considering these aspects, Government Ordered that Government examined the proposal and are pleased to accept it. Accordingly Government Order (G.O.(Rt) No.3522/88/ LAD.) dated 22.10.1988 is modified as follows: “Excess expenditure over the estimate rates, if any, incurred by the Panchayat Committee/Sub committee for the execution of works will be allowed on the basis of the valuation certificate given by the Engineer in charge of the works and on the request of the Panchayat. Such excess expenditure shall be sanctioned by the District Panchayat Officer.” Page No.47 of Exhibit P18 file shows Government Order (G.O.(Rt)No.3522/88/LAD.) dated 22.10.1988, CRA 117&120/02 13 which was modified by Government Order (G.O.(Rt)No. 4050/88/LAD.) dated 6.12.1988. G.O.(Rt)No.3522/88/ LAD. shows that pursuant to G.O.(Rt)No.3097/88/ LAD. dated 16.9.1988, Government issued further orders for successful execution of the works as contemplated in the said Government Order. Under the said Government Order, clause (vi) provides that works will be carried out under the supervision of the Engineers of the Local Works Wing of P.W.D. and valuation of the works will be done by them reckoning the cost of materials and wages as per the directions in the Government Order. Peoples' participation, if any, which shall necessarily be included in the actual cost of the works, will be shown separately. It is the said clause which was modified by G.O.(Rt)No.4050/88/ LAD. dated 6.12.1988, providing that excess expenditure over the estimated rates incurred by the Panchayat consequent to the prevailing rates in the local area, which would be more than the CRA 117&120/02 14 estimated expenditure, is to be sanctioned by the District Panchayat Officer. Page No.34 of Exhibit P19 file shows that Deputy Secretary of Government informed the Panchayat President of Vannappuram Panchayat that the period for completing the works under Eleven Point Programme, though was 31.3.1989 originally, was extended and the work could be executed without any time limit. 7. Evidence of PW1, the then Assistant Executive Engineer and PW2, the then Executive Engineer and PW10, the then Assistant Engineer, establish that estimate was prepared based on the rates approved by PWD as prevailing in 1986. When Government Orders referred to earlier enable the Panchayat Committees/Sub committees to pay wages at the rate prevailing in the local area, which would be in excess of the PWD rate, approved during the relevant period, based on the valuation of the works executed, calculating at the rate fixed by PWD during 1986, it cannot be found that the excess CRA 117&120/02 15 amount, if any, spent was misappropriated. Government Orders specifically provide not only for paying wages at the rate prevailing in the local area, but also approving the said excess expenditure over the approved estimate. Therefore, based on the expenditure estimated at the PWD rate alone, it is not possible to find that there was misappropriation. 8. Learned Special Judge, on a petition filed by the defence, appointed DW1, a retired Engineer, to value the work and submit the report at the stage of defence evidence. DW1 estimated the cost of the work and submitted Exhibit X1 report. It is not known under what provision, learned Special Judge could appoint a commission, like DW1, to estimate the expenses for the work executed and direct the Commissioner to submit a report at the stage of defence evidence. The said order of the learned Special Judge is apparently beyond the scope of defence evidence provided under the Code CRA 117&120/02 16 of Criminal Procedure and therefore, evidence of DW1, based on his inspection and Exhibit X1 report, can only be ignored. 9. Learned Special Judge relied on the evidence of PWs 1, 2 and 10 and found that though Rs.84,000/- was received by the appellants for execution of the work, as estimated by PWD, only Rs.53,710/- was spent for execution of the work and therefore, there is misappropriation. Question is whether that estimate made by PWs 1, 2 and 10 could be accepted or not. Evidence of PW10 shows that in view of the request of the new office bearers of the Panchayat Committee, he estimated cost of the work executed and prepared a detailed valuation statement shown in Exhibit P3 file. As per the said assessment, total cost of the work executed is Rs.78,010/-. Evidence of PW10 is that though the estimate was made by Assistant Executive Engineer, he was not examined. Evidence of PW2 shows that after receipt of the report so received, he CRA 117&120/02 17 verified the details and reduced the amount to Rs.53,710/-. Evidence of PW2 with Exhibit P3(d), the details of valuation, establish that though PW10 assessed the cost of D.R. masonry for the retaining wall of 265.44m3 at the rate of Rs.211.16/m3, it was re-calculated at the rate of Rs.47.85/m3, finding that rate of Rs.211/- is applicable only when the retaining wall is not constructed with the stones obtained from blasting the rocks and the stones used were obtained on blasting the rocks and hence, the rate provided in the estimate, namely Rs.47.85, alone can be calculated. Thus, Rs.56,050.31 was reduced to Rs.12,701/-. Similarly, filling with Contractors own earth and rubble, estimated at Rs.47.85/m3 for 1217.16m3 was modified to 1140.78m3, at the rate of Rs.270.09/10m3. Thus, Rs.58,241.10 was reduced to Rs.30,811/-. That modification was measurement of Item No.1 from 309.97m3 to 309.95m3 and rate from Rs.5,730.78 to Rs.5,730/-, including the deduction CRA 117&120/02 18 at 1/11, being the profit of the Contractor, which will not be available when the work is executed by the Panchayat Committee. Total cost was worked at Rs.56,858/-. Deducting Rs.258/-, calculated at Rs.100/10m3 of 225.8m3 of solid rocks and Rs.889.65, being the expenses for stacking charges, total amount of Rs.78,010/- was reduced to Rs.53,710/-. Entire deductions were made mainly based on the quantity of the stones obtained from blasting the rocks. 10. As stated earlier, the estimate provide for, as Item No.3, blasting four boulder stones, having a measurement of 115m3. The estimate also provide for construction of masonry retaining wall, using both departmental rubble and rubble taken from outside. When the rate payable for constructing the retaining wall using departmental rubble is Rs.47.85/m3, construction of the retaining wall using the rubble taken from outside is Rs.211.16/m3. The estimate show that the stones, CRA 117&120/02 19 which were estimated as available by blasting the four boulder rocks was 115m3, which is shown as Item No.3. So, Item No.4, D.R. masonry for retaining wall is estimated at Rs.211.16/m3 for 177m3. As Column No.9, D.R. masonry for retaining wall using departmental rubble is estimated at Rs.47.85/m3 for 150m3. It is not explained at the time of evidence how this 150m3 stones found available by blasting 115m3 boulder stones would become 225.8m3 of stones. Though learned Public Prosecutor, relying on the relevant estimate seen in Page 5 of Exhibit P20, pointed out that total measurement of four boulder stones would be 231m3 and therefore, the estimate made by PWs 1 and 2 is to be accepted, Exhibit P20 shows that said estimate was not accepted and 231m3 measurement of four boulder stones was reduced to 115m3. Moreover, even if it is taken that 231m3 measurement taken was correct, it is the total of the measurements of four boulder stones shown therein, namely, No.1- CRA 117&120/02 20 200m3, No.2-10m3, No.3-3m3 and No.4-18m3, which together make 231m3. Exhibit P3(f), the estimate of the remaining work to be executed subsequently, shows that the work to be completed includes blasting of hard rocks of two boulder stones. First is having a measurement of 90m3 and the second 30m3, which together constitute 120m3. Therefore, even if it is taken that 231m3 rocks are to be blasted, Exhibit P3(f) shows that 120m3 still remained to be blasted. Therefore, the blasted quantity of rocks could only be 231m3 - 120m3 = 111m3. Evidence of PW1 is that if rock is blasted, the stones available would be less than the quantity of the rock. True, evidence of PWs 2 and 10 is to the effect that blasting the rocks available would be 50% in excess. Even if that be so and 111m3 rock was blasted, the available stones would be round about 150m3, as shown in the original estimate. If that be so, estimate made by PWs 1 and 2 that 265.44m3 stones used for D.R. masonry for retaining wall is CRA 117&120/02 21 the stones obtained by blasting the rocks cannot be accepted. If that be so, as estimated by PW10, the cost should be Rs.56,050/-, instead of Rs.12,701/-, as assessed by PWs 1 and 2. Similarly, evidence of PWs 1 and 2 show that measurement of filling with contractors own earth was reduced from 1217.16m3 to 1140.78m3. Neither PW1 nor PW2 has given evidence as to how the said deduction was made. Though Exhibit P20 file shows some calculation by correction, it is not explained by any witness. Therefore, based on these deductions, it is not possible to hold that cost of D.R. masonry for retaining wall is less than what was estimated by PW10. 11. It is also to be borne in mind that no evidence was adduced by the prosecution as to how the quantum of the amount was worked out either in the original estimate or while calculating the work executed. As stated earlier, Government had given sanction for execution of the work by paying the CRA 117&120/02 22 charges available in the respective local areas. Government also authorised the District Panchayat Officers to approve and sanction the excess expenditure so incurred. In the absence of any evidence as to the charge at which the estimate was prepared or for fixing the quantum of work executed, contention of the defence that the work should be valued at the rate available in the local area, which would exceed the PWD rate, cannot be rejected. If so, on the evidence, it is not possible to hold that cost of the work executed by the Committee, consisting of appellants, was less than Rs.84,000/-, received by them for execution of the work. 12. Though prosecution has a case that the wages paid and the receipts shown in the muster rolls are not correct and witnesses were examined, all those witnesses, except PW7, turned hostile to the prosecution. Even the evidence of PW7 would not establish any forgery or falsification of the CRA 117&120/02 23 accounts. PW7 deposed that he is the son of Pappan. The witness was asked with regard to the entires in the muster rolls, evidencing the payment, showing the name of PW7. But, name of the father shown in the same is Paru. PW7 was not asked whether Kuttappan, son of Paru, shown therein, is himself. PW7 admitted his signature in one entry. There, father is shown as Pappan. Therefore, in the absence of any evidence that Kuttappan, son of Paru, is PW7, based on the evidence of PW7 that it is not his signature, it is not possible to hold that said Kuttappan was not engaged or did not work or did not receive any wages. In such circumstances, learned Special Judge was not justified in finding either that appellants misappropriated the amount or forged the receipts or muster rolls or falsified the accounts or used the forged one as genuine. In any event, when there is definitely a doubt as to the exact quantum of the work executed, appellants are entitled to get CRA 117&120/02 24 at least the benefit of doubt. In such circumstances, conviction of the appellants cannot be sustained. Appeals are allowed. Conviction of the appellants by Special Judge (Vigilance), Thrissur in C.C.No.25/1999 and the sentence awarded are set aside. Appellants are found not guilty of the offences under Sections 13(1)(c) and 13(1)(d) read with Section 13(2) of Prevention of Corruption Act and Sections 409, 468, 471, 477A and 120B of Indian Penal Code. They are acquitted. Bail bonds executed by them stand cancelled. If appellants have deposited any amount as directed by this Court for suspending the sentence, they are entitled to withdraw the same. 24th January, 2011 (M.Sasidharan Nambiar, Judge) tkv CRA 117&120/02 25 M.Sasidharan Nambiar, J. ---------------------------- Crl.A.Nos.117 & 120 of 2002 ---------------------------- JUDGMENT 24th January, 2011