K.T.Joseph vs Superintendent Of Police on 24 January, 2011

Kerala High Court
K.T.Joseph vs Superintendent Of Police on 24 January, 2011
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

CRL.A.No. 117 of 2002()


1. K.T.JOSEPH, RTD. EXDECUTIVE OFFICER,
                      ...  Petitioner

                        Vs



1. SUPERINTENDENT OF POLICE, V.A. C.B.,
                       ...       Respondent

2. PUBLIC PROSECUTOR,

                For Petitioner  :SRI.M.V.BOSE

                For Respondent  : No Appearance

The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR

 Dated :24/01/2011

 O R D E R
             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

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