IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 229 of 2009()
1. T.O.ABRAHAM,S/O LATE KURUVILA ONNOOTTAN,
... Petitioner
Vs
1. STATE OF KERALA,REPRESENTED BY PUBLIC
... Respondent
For Petitioner :SRI.V.N.ACHUTHA KURUP (SR.)
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :15/06/2009
O R D E R
THOMAS P. JOSEPH, J.
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Crl.R.P.No.229 of 2009
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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
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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
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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
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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
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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.
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