V.S. Achuthanandan vs R. Balakrishna Pillai & Ors

(d) On 02.08.1985, the Public Undertaking Committee of the State Legislature inspected the site and submitted its report recommending a judicial probe. The State Government appointed a sitting Judge of the Kerala High Court as Commissioner of Inquiry to conduct the probe. The Commission recorded its enquiry, collected considerable evidence and submitted its report in June, 1988. The Commission came to the conclusion that materials placed before it prima facie disclosed commission of offences punishable under I.P.C. and P.C Act against persons responsible for the same and recommended for investigation 3 into these offences. The State Government accepted the recommendations and constituted a special team, headed by Superintendent of Police for Investigation. The report of the special squad was filed in the Court of Special Judge on 14.12.1990 in Crime No. C.C. No. 1 of 1991.

(f) On 03.02.1993, Criminal Revision Petition No. 762 of 1992, filed by the State against the order of Special Judge was allowed by the High Court. On the strength of the observations made in the order of the Kerala High Court, the State Government took the decision to withdraw the criminal case against all other accused.

(h) During trial, Accused No. 22, Paul Mundakkal became insane and the case against him was allowed to split, Accused No.4 - K.P. Poulose, Contractor, died, Accused nos. 11 and 14 to 21 were discharged by the Court of Special Judge in the final report holding that there was no prima facie case made against them.

12) Jagannad Prasad (PW-66), Managing Partner of M/s C.S. Company deposed before the Court that while he was doing the contract work of a tunnel for Kakkad Hydro Electric Project, he approached the Chief Engineer Bharathan, who told him that the work could be awarded only as per the directions of the Minister (A1). He further deposed that he had executed a promissory note for Rs.5,30,000/- in favour of one Yackochan, who acted as a middle man for the commission payment. He informed the Court that this contract was terminated by the Board.

64), quoting special conditions. The cover containing the conditions and deviations was opened on 30.06.1982, when K.P.Poulose was present in the Board's Office. However, Kuriakose, the other tenderer was not informed and later on 09.09.1982, K.P.Poulose was pre-qualified and Kuriakose was disqualified which, according to him, was without notice. The contract for the balance power tunnel and concrete lining work of Idamalayar works was ultimately awarded to K.P.Poulose at 188% of the above estimated rate and the surge shaft work was also awarded to him at 162% above the estimated rate.

15) The basic stand of the prosecution is that A1 entered into criminal conspiracy to award the disputed contract involving heavy financial gain to K.P.Poulose (A4) and the conspiracy and abuse of power by certain officials enabled the conspirators to earn a pecuniary advantage of Rs.2,39,64,253/-, in addition to the financial loss caused to the Board. It is the specific case of the prosecution that rate awarded in both the contracts is exorbitant. It is not in dispute that the contract was awarded at 188% above PAC in the case of tunnel work and 162% above PAC for the surge shaft work. Verification of Ext. P-52(b) shows that the sanctioned estimate for the tunnel work was Rs.1,17,20,633.90. On the other hand, the accepted tender amount as per the award of contract was Rs.2,45,80,796/-

which is clear from Ext P 52. It is further seen as per Ext P-68 agreement, the sanctioned estimate for surge shaft was Rs. 74 lakhs and it was awarded for Rs.1,42,94,901/- The estimate for floor concreting was Rs.479.5 per M3 and the estimated 20 rate for sides and arches was Rs.476.20 per M3. All the above details were highlighted in the evidence by PW-151 a competent Engineer. Likewise, the rate for floor concreting awarded to K.P.Poulose was Rs.825.47 per M3. In fact, the calculations made by PW-151 were not seriously disputed by the defence.

Ext. P-19/Contract Certificate of the Power tunnel shows that the amount paid to the contractor for 24 meters tunnel driving was Rs. 2,39,961/-. It was highlighted that when the total work was done by the labourers at piece rate basis, they were given Rs. 2,500/- only per M3. The remuneration for 24 meters driving tunnel would come to only Rs.60,000/- the difference i.e. Rs.1,79,961 (2,39,961-60,000) would show that the tunnel driving work was given to K.P.Poulose (A4) at an excessive rate.

The reasons relied on by the Board exposes the omission and negligence on its part in fixing the contract with PW-146 Kamalasanan or E.M. Varkey or with Kuriakose PW-22 or PW-

He explained A1 that if tenders are invited after solving the problem of tunnel workers, rate will be reduced, that is profitable to the Board. A1 replied with higher anger that I know how to look after the Board, I do not want any advice from your people, are you approaching me with intimate talks, after this, I had no talk anything about it."

41) The analysis of the evidence of PW-7 coupled with the other prosecution witnesses and other notes and report prepared for the Board clearly indicate that though he reminded that certain things are not permissible, because of the fact that the beneficiaries of the contract are known to A1 and A6, he has no other option except to prepare notes in such a way and ultimately the Board accepted the same.

About maintainability of the appeal by the present appellant:

Conclusion

Having arrived at such conclusion, we are of the view that the High Court failed to appreciate in its proper sense the materials placed by the prosecution and brushed aside several important items of evidence adduced by the prosecution.

The Special Court has also accepted the prosecution case founding that A1 along with K.P. Poulose, Paul Mundakkal and other accused persons entered into criminal conspiracy and rightly convicted them. In our considered view, the High Court committed a grave error in acquitting the accused without adverting to the reliable and acceptable evidence adduced by the prosecution.

each, and the same shall be paid within eight weeks, in default, to undergo simple imprisonment for one month each.

50) Considering all the materials and in the light of the above discussion, we agree with the conclusion arrived at by the Special Court and hold that the High Court has committed an error in acquitting the accused persons. Accordingly, R. Balakrishna Pillai (A1), P.K. Sajeev (A3) and Ramabhadran Nair (A6) are awarded rigorous imprisonment for one year with fine of Rs. 10,000/- each, and the same shall be paid within 83 eight weeks, in default, to undergo simple imprisonment for one month each. All the three accused are entitled remission for the period already undergone, if any, by them. The criminal appeal is allowed to the extent indicated above.

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