IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN TUESDAY, THE 24TH MAY 2011 / 3RD JYAISHTA 1933 CRL.A.No. 2070 of 2003(C) ------------------------- CC.21/1998 of SPL.COURT SPE/CBI-II & IV ADDL.SESSIONS COURT, ERNAKULAM .................... APPELLANT(S): ACCUSED NO.1: ------------------------------------------------- K.T.MURALEE MOHANAN NAIR, S/O.LATE THANKAPPAN PILLAI, SARATH BHAVAN, PADA NORTH, KARUNAGAPPALLY, SUB DIVISIONAL ENGINEER, T.D. & M.D.F., TELECOM, KOLLAM. BY ADVS. SRI.B.RAMAN PILLAI, SRI.GEORGE PHILIP, SRI.R.ANIL, SRI.RAJU RADHAKRISHNAN, SRI.ANIL K.MOHAMMED, SRI.DELVIN JACOB MATHEWS. RESPONDENT(S): COMPLAINANT: ---------------------------------------------------- C.B.I. COCHIN, REPRESENTED BY THE STANDING COUNSEL, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI. P.CHANDRASEKHARAN PILLAI, SC, CBI THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 24/05/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss ORDER ON CRL.M.A.NO.13410/2003 IN CRA.NO.2070/2003 DISMISSED 24/05/2011 SD/- P.S.GOPINATHAN, JUDGE /TRUE COPY/ P.A.TO JUDGE Kss P.S.GOPINATHAN, J. ================== Crl.A.No.2070 OF 2003 ================== Dated this the 24th May, 2011. JUDGMENT The appellant is the first accused in C.C.No.21 of 1998 on the file of the Special Judge, (SPE/CBI)-II, Ernakulam. He was prosecuted by the Inspector of Police, SPE/CBI, Cochin along with two others (accused 2 and 3) alleging offence under Section 120B IPC r/w Section 409, 465, 468, 471 IPC and Section 13(2) r/w Section 13(1) (c) & (d) of the Prevention of Corruption Act, 1988 (hereinafter for short referred to as the 'PC' Act) and for offence under Section 409, 465, 468 and 471 IPC and Section 13(2) r/w 13(1) and (d) of PC Act. After trial, the Special Judge arrived at a finding that the prosecution had not succeeded to establish any offence against accused 2 and 3 and that as against first accused the prosecution failed to establish offence under Section 120B, 465 and 468 IPC. Consequently, accused 2 and 3 were acquitted. The appellant was convicted for offence under Section 409 and 471 IPC and Section 13(2) r/w 13(1) (c) & (d) of the PC Act. The Crl.A.No.2070 OF 2003 2 appellant was sentenced to rigorous imprisonment for one year and a fine of Rs.10,000/- with a default sentence of simple imprisonment for two months for offence under Section 409 IPC. For offence under Section 471 IPC, he was sentenced to rigorous imprisonment for 6 months and a fine of Rs. 5,000/- with default sentence of simple imprisonment for one month. For offence under Section 13(2) r/w 13 (1) (c) & (d) of the PC Act, he was sentenced to rigorous imprisonment for one year and a fine of Rs.10,000/- with a default sentence of simple imprisonment for a further period of two months. Assailing the above conviction and sentence this appeal was preferred. 2. I heard Sri. B.Raman Pillai, learned counsel appearing for the appellant and perused the records. 3. The prosecution case in brief is that the appellant while working as Junior Telecom Officer in Karunagappally was promoted as Officiating Sub Divisional Engineer and posted in the very same office. The Telephone Exchange had the capacity of 1584 lines. There was proposal for expansion. In a project Co-ordination meeting held on 16.8.95, it was decided to increase the capacity of the exchange Crl.A.No.2070 OF 2003 3 by adding 1016 new telephone connections. The appellant was directed to finish the expansion work within a time schedule. Advance amount was also sanctioned as imprest money. According to the prosecution, the appellant did the expansion work including erection of pillars, fitting of D.P boxes, drawing of cables etc. through the departmental staff. He further conspired with the second and third accused who are his brother-in-laws and in pursuance to the conspiracy, he forged 31 work bills in the name of one V.Harikumar, Mannoorethu House, Kuttivattom, Karunagappally for a total amount of Rs.1,24,020/- for the works like drawing and termination of 1200/6 1/2 J F cables on the exchange M D F, termination of C.T box, jumpering in C.T box, erection of new D.P boxes and termination of D.P box. In the name of the second accused, 16 work bills totally for Rs.48,350/- were forged for works like fitting, cleaning, lacing and termination of 100/6 1/2 cables in C.T. boxes jointing cables and related trenching. In the name of the third accused, 25 work bills for Rs.25,810/- for re-wiring of D.P boxes existing in the field were forged. The bills were forged to make it appear that the above said works were executed Crl.A.No.2070 OF 2003 4 by V.Ravikumar and accused 2 and 3 though the works were executed by the department staff. Using those forged bills as genuine, the appellant by abusing his office, accepted the amount covered by the said bills and thereby he had pecuniary advantage of that much amount, which he appropriated and thereby committed breach of trust and criminal misconduct. The Deputy Superintendent of Police, CBI got source information following which a case as Crime No.RCA 15/A/96/CBI/KER was registered for which Ext.P102 first information report was prepared. The investigation was taken over by PW44, the Inspector, CBI and and later by PW45. After completing the investigation, PW45, the Deputy Superintend of Police filed the charge sheet against the appellant and the other two accused. 4. The Special Judge took cognizance and issued process responding to which the appellant and other accused entered appearance. They were furnished with the copies of the final report and connected documents; and then heard. On finding that there are materials to send the appellant and other accused for trial, a charge for the earlier mentioned offences was framed. When read over and Crl.A.No.2070 OF 2003 5 explained, the accused pleaded not guilty. Therefore, they were sent for trial. On the side of the prosecution PWs. 1 to 45 were examined and Exts.P1 to P112 were marked. Material objects 1 and 2 were also marked. After closing the evidence for the prosecution, the accused were questioned under Section 313(1)(b) of Code of Criminal Procedure. They denied the incriminating evidence. The appellant, also filed a written statement contending that while he working as Junior Telecom Officer he was temporarily promoted as Sub Divisional Engineer but no substitute was posted to the post of Junior Telecom Officer. Consequently, the appellant was managing both the posts. Proposal for expansion of the Telephone Exchange was finalised and the appellant was asked to finish the expansion work within a time frame. Quotations were invited and works were awarded to various contractors at different places. The contractors executed the work with the assistance of the expert employees in the department for which the concurrence of the Superior Officers was obtained as there were no outsiders who were familiar with the work. The departmental staff assisted the contractors during off and leisure hours, holidays and Crl.A.No.2070 OF 2003 6 nights. As a result, the work was completed. As per the existing rules, payment exceeding Rs.500/- should have been made through cheque. But taking into account of the emergent nature of the work, rules were relaxed and permission was granted to pay cash up to Rs.5,000/-. The contractor, as and when, each and every item of work was completed, submitted the bills and vouchers basing on which payments were effected. On the side of the appellant, 5 witnesses were examined as DWs.1 to 5. Exts.D1 to D12 were also marked. On appraisal of the evidence on record, the Special Judge, as mentioned earlier, found the appellant alone guilty for offence under Section 409 and 471 IPC and Section 13(2) r/w 13(1)(c) and (d) of the PC Act. 5. The fact that the expansion work were executed is not at all disputed. The liability of the department to pay for the same and the entitlement of the persons who did the work to get the payment are not disputed. Ext.P43 series are the bills submitted by the second accused. Ext.P44 series are the bills submitted by the third accused. Though the prosecution had alleged that the second and third accused were only name lenders in the bill and that works were executed through the Crl.A.No.2070 OF 2003 7 departmental staff by the appellant, the special Judge arrived at a finding that the second and third accused executed the works, and bills were submitted by them. Ext.P47 series are the bills submitted by one V.Harikumar, Mannoorethu House, Kuttivattom, Karunagappally. According to the prosecution, no such person in that address is available, but it is a fictitious person. It is curious to note that the prosecution had not cared to adduce any evidence to the effect that there is no such person in the name and address shown in Ext.P47 series. The prosecution should have examined either the Postman or the Village Officer or to produce the voters list to establish that there is no such person as shown in Ext.P47 series. On the other hand, PWs.8, 9, 12 and 14 were examined to prove that they had executed the work at the request of the appellant and they were paid by the appellant. PW8 is a Telephone Mechanic. PW9 is the son of PW8. He claims to be an experienced worker. PW12 and 14 are also Telephone Mechanics. None of them did support the prosecution case that they worked at the instance of the appellant. Their evidence is that they worked under the contractor. Of course, PW9 had deposed that some Crl.A.No.2070 OF 2003 8 payments were made by the first accused. PWs. 8, 9, 12, and 13 were cross examined by the prosecution with the permission of the court. But no material was disclosed in their cross examination to establish that no person by Harikumar as shown in Ext.P47 is alive and that they were engaged by the appellant. On the other hand, PW12 had deposed that Ext.P47 series were signed by the contractor Harikumar and he had seen the contractor signing Ext.P47 series. That evidence of PW12 cuts the root of the prosecution case. True that the prosecution had declared that PW12 is a witness loyal to the defence. Even then his evidence assumes significance in the absence of evidence on the side of prosecution to the effect that there is no person by Harikumar as shown in Ext.P47 series bills. 6. PW6, then Junior Telecom Officer who succeeded the appellant was examined to prove the disputed bills. According to him some of the bills were passed by him and the payments were effected by the appellant. Some of the disputed bills were passed and the payments were effected by the appellant himself. The evidence of PW6 is also not sufficient enough to come to a conclusion that there is no Crl.A.No.2070 OF 2003 9 contractor by name Harikumar with address shown in Ext.P47 series or that the bills were prepared or signed by the appellant.. 7. The prosecution would rely upon the evidence of PW43, the Handwriting Expert. The disputed vouchers and bills were forwarded to PW43 for expert opinion. Ext.P99 is the second opinion given by PW43. Ext.P100 is the reasons to arrive at the opinion expressed in Ext.P99. PW43 had come to a conclusion that the bills said to have been submitted by second and third accused were really signed by them. On the other hand it was found that the hand writing and signatures in Ext.P47 series are that of the appellant. Now as against the appellant that evidence of PW43 coupled with Ext.P99 alone is available. It is curious to note that the prosecution had not at all cared to put these documents to PW6, some of which were passed by PW6 as to whether the hand writing and signature in Ext.P47 were that of the appellant or not. The prosecution has also no case that any of the witnesses had stated that Ext.P47 series were forged by the appellant. It is in this background the evidence of PW12 that Ext.P47 series were signed by the contractor Harikumar becomes significant. It is true that Crl.A.No.2070 OF 2003 10 PW12 is a witness not loyal to the prosecution. But no question was put to PW12 suggesting that Ext.P47 series were written or signed by the appellant. PW6 also had stated during the cross examination by the second and third accused that the signatures contained in Ext.P47 series are that of Harikumar. In the light of the evidence of PWs. 6 and 12 it is not safe to give reliance to the expert opinion. 8. It is admitted that there was estimate for the execution of the work and submission of quotations. Neither the estimate nor the quotation was produced by the prosecution. The work order issued in pursuance to the quotation was also not produced. If the work order was issued, who accepted the same is not investigated or brought in evidence. The evidence on record did not disclose as to who disbursed or who acknowledged the amount. Curiously the acknowledgment for the receipt of the amount was also not brought on record. In the above circumstance, it cannot be held that the payment was not made to the contractor. There is no evidence at all to show that the appellant acknowledged the amount covered by Ext.P47 series. In this juncture, the case of the prosecution that works were executed become Crl.A.No.2070 OF 2003 11 significant. Admittedly, the department has no case that the payments were effected without executing the work. I do not omit to note that, the prosecution has got a case that some excess amounts were effected. The judgment impugned would show that the special Judge had arrived at a finding against the prosecution on that aspect. In the above circumstances, I find that it may not be safe to rely upon the opinion of the expert alone to sustain a conviction especially in the light of the evidence of PWs.6 and 12 that Ext.P47 series were signed by the contractor. The appellant is entitled to the benefit of reasonable doubt. He is entitled to an order of acquittal. In the result, giving benefit of reasonable doubt, the appeal is allowed. The conviction and sentence under challenge are set aside. The appellant would stand acquitted. The fine amount, if any, collected shall be refunded. Sd/- P.S.GOPINATHAN, JUDGE. mns //true copy// P.A. To Judge